A 
A 

o 

09 

0 
0 
0 
8 
4 
4 

9 
1 
7 



cz 
m 

30 

*^"^"^S 

— 

Bl 

5 

CD 
3° 

^^^^ 

33 
-< 

^= 

3> 
— 

i 

5 

mM 

V3\6 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


TREATISE 


•F  THE 


LAW 


RELATIVE    TO 


THE  RIGHTS   OF  LIEN 


AND 


STOPPAGE  IN  TRANSITU. 


BY  RICHARD  WHIT  AKER,  ESQ 


OF  THiS  MIDDLE  TEMPLE 


LONDON,  PRINTED  : 

NEW-YORK  :  REPRINTED  AND  PUBLISHED.. 
BY  I.  IULF.Y. 

1816. 


T 


IX 


PREFACE. 


THE  advantage  which  the  profession  has  un- 
questionable derived  from  treatises  in  which  the 
scattered  principles  and  decisions  concerning  sub- 
jects of  particular  importance,  and  frequent  occur- 
rence in  the  law  have  been  collected,  and  reduced 
to  method,  would  of  itself  (while  any  such  subject 
remains  not  thus  rendered  easy  of  reference  and 
comprehension,)  be  a  sufficient  apology  for  under- 
taking a  work  dedicated  to  those  purposes  ;  and 
upon  this  ground  alone  an  attempt  to  collect  and 
methodize  the  law  relative  to  the  rights  of  lien  and 
stoppage  in  transitu,  would  be  justifiable  were  there 
no  other  motive  for  making  it.  But  a  more  satis- 
factory reason  suggests  itself ;  the  laws  of  this 
country  have  deemed  it  expedient,  that  private  in- 
dividuals should-  have  the  power  of  enforcing  their 
rights  by  their  own  immediate  acts,  in  certain  ca- 
ses, in  which  the  means  of  doing  it  would  be  lost, 
if  they  were  obliged  to  have  recourse  to  the  slower 
process  of  courts  of  justice.  Where  the  individual 
is  thus  entrusted  with  the  right  of  acting  for  him- 
self, and  where  the  occasion  may  require  him  to 


766 


IV  PREFACE. 

act  with  a  promptitude  which  will  not  admit  the 
precaution  of  resorting  to  legal  advice,  it  becomes 
a  matter  of  particular  concern  to  him,  to  be  tho- 
roughly acquainted  with  the  nature  and  extent  of 
his  right.  Among  the  rights  of  this  description 
there  are  none  more  frequently  called  into  exercise 
than  those  of  lien  and  stoppage  in  transitu,  and 
rj  le,  it  may  therefore  be  presumed,  which  the 
convenience  not  only  of  the  profession,  but  of  the 
very  numerous  class  of  individuals  engaged  in  this 
country  in  commercial  pursuits,  more  urgently  re- 
quires to  be  made  the  subject  of  a  distinct  treatise. 
It  is  under  these  impressions,  that  I  have  endeav- 
oured in  the  following  pages  to  collect  and  reduce 
to  method  the  law  relative  to  the  rights  of  lien  and 
stoppage  in  transitu  ;  rights  which  though  they  are 
in  many  points  essentially  distinct,  bear  so  near  a 
relation  and  resemblance  to  each  other,  that  they 
may  he  very  properly  included  in  the  same  trea- 
tise. 


CONTENTS 


OF  THE 


LAW   OF   LIEN. 


CHAP.  I. 

Page. 
Nature,  origin,  and  different  species  of  lien  1 

CHAP  II. 

In  what  cases  a  particular  lien  may  be  acquired  13 

1st.  By  the  common  law  ib. 

2d.  By  express  contract  ib- 
3d.   By  a  delivery  through  persons  to  whom  the  pro- 
perty on  which  the  lien  is  claimed  does  not  belong, 

as  servants,  &c.  ib 

CHAP.  III. 

In  what  cases  a  general  lien  may  be  acquired  31- 
1st.  By  the  general  usage  of  trade  ib 
2d.  By  the  particular  usage  of  the  parties  ib. 
3d.  By  express  agreement  ib. 
4th.  Through  persons  to  whom  the  property  on 
which  the  lien  is  claimed  does  not  belong,  as  ser- 
vants, &c.  ib. 


CONTENTS. 

CHAP.  IV. 

Page. 

In  what  cases  liens  cannot  be  acquired  39 
1st.  In  w'iat  cases  no  general  lien  can  be  acquired 

though  a  particular  lien  may  exist  ib. 
2d.  In  what  cases  no  sort  of  lien  can  be  acquired       ib. 

CHAP.  V. 

By  what  means  the  right  of  lien  is,  or  is  not,  devested  or 

waived  68 

CHAP.  VI. 

Lien  of  Attornies  and  Solicitors  75 

Clerks  of  the  several  Court?  86 

Bankers  89 

Calico  Printers  90 

Carriers  in  general  ib. 

by  Water  95 

Dyer  99 

Factor  or  Broker  102 

Farrier  113 

Fuller  114 

Innkeeper  115 

Insurance  Broker  121 

Miller  124 

Packer  126 

Pawnee  ib. 

Taylor  142 

Vendor  143 

Wharfinger  146 


CONTENTS 

OF  THE 

LAW  OF  STOPPAGE  IN  TRANSITU. 
CHAP.  I. 

1.  Nature  and  origin  of  the  right  Page  149 

2d.  By  what  description  of  persons,  and  under  what  na- 
ture of  contract  it  may  be  exercised  ib. 

CHAP.  II. 

How  the  stoppage  of  the  goods  is  to  be  effected  166 

CHAP.  III. 

When  the  stoppage  may  be  effected  174 

CHAP.  IV. 

When  the  consignor's  right  to  stop  the  goods  in  transitu  is 
devested  by  the  consignee's  having  aliened  them  to  a 
third  person  209 

GENERAL  INDEX  211 


INDEX 


O* 


CASES   CITED. 


Page. 
Adams  v.  Clayton  132 

Alderson  v.  Temple  53,4,5,6,7 
Alger  v.  Hefford  77 

Andrews,  ex  parte  90 

Artaza  v.  Sinallpiece       97,8,9 
Aspinall  v.  Pickford  93 

Astley  v.  Reynolds  1 34 

B. 

Baldwin  v.  Cole  8 

Bamford  v.  Baron  55 

Baring  v.  Day  23,4 

Barnes  v.  Freeland  106 

Bayley  v.  Ballard  58 

Bell,  ex  parte  78,  80 

Bennett  v.  Mellor  116 

Billon  v.  Hyde  59 

Binstead  v.  Buck  26,46 

Birkott  v.  Jenkyns  166 

Boardman  v.  Sills  75 
Bohtlink  v.  Inglis 

1 52,4,6 ,769,75,97 ,200,6 
Bohtlink  v.  Schneider 

151.80,200 

Bowerin<r  v,  VpniHe/  196 


9 


Paoe. 
Brennan  v.Currint  16,47,9,114 
Brown  v.  Heathcote  62,74 
Buckley  v.  Taylor  59 

Burghall,  assignees  of,  v. 

Howard  167 

Bush,  ex  parte  59,78,80 

Butcher  v.  Easto  54,5,6,7 

Butler  v.Woolcot40.95,161,76 


Cadogan  v.  Kennett  58 

Caldwell  v.  Ball  215.27 
Chapman  v.  Allen     14,27,143 

Chapman  v.  Derby  107 

Child  v.  Morley  45 

Clarke  v.  Gray  102 

Clarke  v.  Shee  134 

Clay  v.  Willan  92 

Clayton  v.  Adams  133 
Close  v.  Waterhouse  22,100,1 

Cock  v.  Goodfellow  56,8 

Cogo-s  v.  Bernard  95 

Collins  v.  Martin  138 

Collins  v.  Ongley  47,100 

Coming,  ex  parte  127 

Compton  v.  Bedford  54 

Cooper  v,  Andrews  143 


NAMES  OF  OASES  CITED. 


Page. 
Copland  v.  Stein 

59,01,73,110,45,77 
Cosser  v.  Gough  55 

Cowell  v,  Simpson  47,SO,108 
Coxe  v.  Harden  174,83,225 
Craddock  v.  Glin  80 

Creswell  v.  Biron  77 

Crosby  v.  Crouch  53,6.7,8 
Cuming  v.  Brown       210,26,8 

D. 

Dale  v.  Toilet  134 

Daniel  v.  Kussel  22 

D'Aquiila  v.  Lambert 

153,63,9,71 
Daubigr.y  v.  Duval 

53,70,1,2,136,8 
Davis  v.  Bowsher  S9,90 

De  Bouchout  v.  Goldsmid  136 
Deeze,  ex  parte 

5,8,10,14,21,32,114,126 
Demainbray  v.  Metcalfe 

36,131,40,1 
Pennie  v.  Elliott  85 

Devon  v.  Watts  54,6 

Dick  v.  Lumsden  212 

Dixon  v.  Baldwin 

55,152,70,5,7,88,94 
Downman  v.  Matthews  4,36 
Drinkwater  v.  Goodwin 

64,72,104,5 
Dumas,  ex  parte  74,157 

Ounmore  v.  Taylor  144 


F. 

Face. 
Falkener  v.  Case  59,65,127 
Farewell  v.  Coker  87 

Farmer  v.  Davies  20 

Fearon  v.  Bowers  227 

Feize  v.  Wray 

1 43,54,6,7,62,3,4,6,72,96 
Fells  v.  Read  47 

Fitzroy  v.  Gwillim  134,5 

Foord,  ex  parte  54 

Fowler  v.  Kymer  188,203 
Foxcroft  v.  Devonshire  105 
Furl  on  2:  v.  Howard  78 


G. 


Gardiner  v.  Coleman  103 

George  v.  Clagget  123 

Gibbon  v.  Paynton  92 

Gisbourne  v.  Hurst  91 

Glaister  v.  Hewer  83 

Glyn  v.  Baker  136 

Godfrey  v.  Furzo  145,57 

Godin   v.    London  Assu- 
rance Company  75,103,5,12 
Good  v.  Jones  39 

Grant  v.  Vaughan  135 

Green  v.  Farmer 

4,8,10,32,45,100,1,3,26 
Grey  v.  Cockerill  40,88 

Griffin  v.  Eyles  82 

Gwynne,  ex  parte        145,6,81 

1  H. 


Eckardtv.  Wilson  55 
Ellis  v.  Hunt 

1 46,5 1 ,2,7  5,6,7,8,90,6,202,4 

Emden  v.  Daily  84 

Emery,  ex  part,-  103,12 

Evans  v.  Martlett  315 

Exallv.  Partridge  45 


Haille  v.  Smith  164,224 

Hall  v.  Oddy  84,5 

Hamilton  v,  Davis  23 

Hammond  v.  Anderson 

145,52,80,1 
Hammonds  v.  Barclay 

2,29,51,104,7,29 
Hanson  v.  Meyer      99,144,81 


NAMES  OF  CASES  CITED 


Page. 
Harman  v.  Anderson  177 

Harnian  v.  Fishar  54,5.6,7,9 
Hartford  v.  Jones  '  9,23 

Hartshorn  v.  Slodden  56,7,8 
Hassell  v.  Simpson  54.6,9 
Henley  v.  Welch  '  27 

Hill  v.  Simpson  139 

Hinde  v.  Whitehouse  143,4 
Hiscox  v.  Greenwood  52 

Hoare  v.  Hartopp  139 

v.  Parker         78,138,41- 

Hodgson  v.  Loy 

143,50,2,62,91.5 
HolHngworth  v.  Tooke  1 03 
Hoist  v.Pownall  1 69,7  2,204,5,6 
Hooper  v.  Smith  54 

Honvood  v.  Smith  139 

Hoteler,  case  de  1 19 

Houghton  v.  Matthews  11,110 
Houlditch  v.  Milne  15 

Hovill  v.  Lethwaite  65 

Humphreys  v.  Partridge  100 
Hunt  v.  Ward  196 

Hunter  v.  Beal  176,7,91,3,4,7 
Hunter  v.  Berkeley  14 

Hurry  v.  Mangles  177 

Hussey  v.  Christie       10.19,28 


Inglisv.  Usherwood 

153,4,99,204 

Izett  v.  Motmtaih  92 

J. 

Jacob  v.  Shepherd  56,7 

Jones  v.  Gibbons  63 

Jones  v.  Pearl e  68,119 

Jones  v.  Smith  4,132 

Jones  v.  Thurlow  116,7,9 

Jourdalne  v.  Lefevre  89 


Kettle  v.  Hammond 


54*5 


Page. 
King  v.  Milsom  136 

Kinlock  •  .  Craig 

65,71,11137,62,3,91,213 
Kirkman  v.  Shavvcross 

8,10,11,16,22,7,33,6,7,92, 
100,2,15 
Kruger  v.  Wilcox 

68,9,71,103,12 
Kymor  v.  Suwercrop  151 


Lambert  v.  Robinson  91 

Lane  v.  Cotton  91,2,113,15,17 
Lanyon  v.  Blanchard  40,123,4 
L'Apostre  v.  Le  Plaistrier  158 
Law  v.  Skinner  54 

Lawson  v.  Dickenson  79 

Lee,  ex  parte  59,80 

Leeds  v.  Wright  183 

Lempriere  v.  Paslcy 

4,43,63,5,74,222 
Lenton  v.  Cook  27,47 

Lickbarrow  v.  Mason 

2,63,5,7 1 ,94 1 , 1 2,1 9,29.40, 

50,2,63,72.206,10.11,13, 

15,22,3,5 

Lowndes  v.  Anderson  136 

Lowry  v.  Bourdieu  134 

M. 

Maans  v.  Henderson 

39,122,3,36 
Mater  v.  Massias  109 

Mackreth  v.  Symons  4? 

Maeleodv.  Drummond  13? 
M'Combiev.  Davies 

68,70,1,2,137,8 
Madden  v.  Kempster  43,130 
Man  v.  Shifmer  39,70,106,22 
Manton  v.  Moore  59 

Marsden  v.  Panshall  136,4] 
Mason  v.  Lickbarrow 

140,3,216,18 
Merryweather  v.  Mellish      76 


NAMES  OF  CASES  CITED. 


Page. 
jMiddleton  v.  Fowler  91 

Miller  v.  Race  135 

Mills  v.  Ball 

169,70,1,2,91,5,204,27 
Mitchell  v.  Oldfield  76,80,4 
Mitford  v.  Vaughan  100 

Moor  v.  Benham  140 

Morse  v.  Slue  92 

Morsland  v.  Pasley  84 

Moses  v.  Macfe; Ian  134 

Moss  v-  Townshend  120 

N. 

Naylor  v.  Maudes 

8/16.34,115,6,46 
Neatev.Ball    '  153 

Nesbitt,  ex  parte         76,8,138 
Nevvson  v.  Thornton 

136,7,59,226 
Newton  v.  Chantler  56 

Nicholson  v.  Chapman     26,46 
Nicholson  v.  Wilkn  92,6 

Nix  v.  Olive  169,214 

Northey  v.  Field       152,67,70 
Nunez  v.  Modigliani  84 


<> 


O'Deav.  O'Dea  76 

Ockendon,  ex  parte 

5,8,15,73,117,25,30,1 
Oppenneim  v.  Russel 

8,11,16,31,3,7.42,92.-4.100, 
52,71,5,96,205.9 
Orlehar  v.  Fletcher  74 

Ormerod  v.  Tate  s:i.r> 

Owenson  v.  Morse  1 96 

©wston  v.  Bryan  82 


Packer  v.  Gillu  I -J'.' 

Parkei  v.  Carter  121,2 

Parker  v.  Patrick  140 

Parkhttrsl  v.  Foster  115 


Page- 
Paterson  v.  Tash 
Peacock  v.  Rhodes  135 

Pierson  v.  Dunlop 
Pultney  v.  Keymer        28,124 
Pyne  v.  Earle 

R, 


83 


Rabon 3  v.  Williams  123 

Ratcliffe  v.  Davies  14 1 

Read  v.  Dupper  81 

Remington  v.  Stevens  6 

Rex  v.  Smollet  87 

Rich  v.  Coe  20 

Richardson  v.  Goss 

10,11,28,30,41,51,124,47, 
75,S3,94,6 
Roberts  v.  Mackoull  84 

Robinson  v.  Walter  117 

Row  v.  Dawson  64 

Rushforth  v.  Hadfield 

10,34,5,91,3,100,13 
Rust  v.  Cooper  54,6,7,8 

Ryallv.  Rowles  66,127 


S. 


Salomons  v.  Nissen 

166,210,26,7 
Savill  v.  Barchard 

89,100,26,47 
Schoole  v.  Noble  84,5' 

Scott  v.  Pettit  152,3,70,80,3,96 
Scott  v.  Surman  158 

Scudamore,  ex  parte  53,6 

Shank,  ex  parte  21,68 

Siffken  v.  Wray  159,73 

Singleton  v.  Butler         56,7,9 
Six  clerks,  ex  parte  87 

Skinner  v.  Upshaw  91 

Slubey  v.  Heyward  145,6,80,1 
Small  v.  Oudley  54,9 

Smith  v.  Howies  158,62 

Smith  v.  Bromley  134 

Smith  v.  Goss  176,91,5,6 

Smith  v.  Payne  56.7 


NAMES  OF  CASES  CITED. 


Page. 
Smith  v.  Staples  166 

Snec  v.  Prescott 

112,50,3,66,9,70,96,210,18, 
22 
Snook  v.  Davidson  39,122 

Solnergreen  v.  Flight  98,9 
Solomons  v.  Bank  of  Eng- 
land 136 
Spears  v.  Hartley  6,8,34,147 
Stephen  v.  Coster  147 
Sterling,  ex  parte  79 
Stokes  v.  La  Riviere  191,5,7 
Stone  v.  Lingvvood  44 
Stoveld  v.  Hughes  170,81,229 
Strode  v.  Blackhurne  136 
Svvaine  v.  Senate  84,5,6 
Sweet  v.  Pym  68,9,71,1 15,61 
Syeds  v.  Hay                    8,147 


Tamplin  v.  Diggins  59,134 

Taylor  v.  Hawkins  137 

Taylor  v.  James  26 

Taylor  v.  Lewis  87 

Taylor  v.  Popham  80,6 

Taylor  v  Wheeler  74 

Thomson  v.  Freeman  56,7,8 

Thornton  v.  Hargrave  54 

Twort  v.  Day r ell  76 


Page. 
Walker  v.  Woodhridge 

151,3,67 
Walley  v.  Montgomery  165,74 
Warbrook  v.  Griffin  119 

Ward  v.  Felton  73,99 

Ward  v.  Hepple  76 

Waring  v.  Cox  226 

Wcldon  v.  Gould      51,90,124 
Welsh  v.  Mole  80,1,2 

Westerdell  v.  Dale  20 

Weymouth  v.  Boyer      47,109 
White  v.  Baring  20 

Whitehead  v.  Vaughan 

44,64,70,121 
Whitfield  v.  Lord  Le  De- 
spencer  91 
Whithill  v.  Thompson  55 
Wilkins  v.  Carmichael 

10,21,68,81 
Wilson  v.  Balfour 

2,53,67,127,34 
Wilson  v.  Day  54 

Wiseman  v.  Vandeput 

103,51,62,6 
Wolf  v.  Summers  97 

Worsely  v.  Demattos     54,5,S 
Wright  v.  Campbell 

157,210,15 
Wright  v.  Lawes 

177,88,96,204,25,6 


Vanderzee  v.  Willis   89,132,3 
Vaughan  v.  Davies  85 

Vernon  v.  Hankey  59.73 

w. 


Waldron's  case  87 

Walker  v.  Birch   50,103,8,30 
Walker  v.  Burrow?  74 


Yeatcs  v.  Grove  58,64 

Yorke  v.  Greenau^h 

14,16,47,91,2,115,6,7,8 
Yorke  v.  Grindstone  117 

Z. 

Zinck  v.  Walker  103 


THE 


LAW  OF  LIEN 


CHAP.  I. 


Nature,  Origin,  and  different  Species  of  Lien. 

THE  term  lien,  as  adopted  by  our  courts  of  law   .  Defin'i- 
und  equity,  and  as  used  by  our  legal  writers,  differs  the  term 
in  the  extent  of  its  acceptation.     In  that  which  is  in  its 
most  extensive,  it  applies  to  every  case  in  which  J^-ed"" 
either  real  or  personal  property  is  charged  with  the  scnse 
payment  of  any  debt  or  duty ;  every  such  charge 
being  denominated  "  a  lien  on  the  property." 

It  is  not  my  intention  in  this  treatise  to  enter  into 
die  consideration  of  every  sort  of  legal  and  equi- 
table right,  which  this  comprehensive  definition  of 
the  term  embraces.  Were  the  whole  law  on  the 
subject  collected,  it  would  not  only  occupy  much 
more  space  than  that  which  it  is  purposed  to  give 
;o  this  treatise,  but  *would  supply  ample  matter  *o 
for  more  than  one.  The  kinds  of  lien  to  which 
the  present  will  be  confined,  are  those  which  arc 
included  under  the  term  in  its  most  limited  siscnifl- 


*  THE   LAW  OF  LlEiV 

second-  cation,  and  in  which  it  has  been  defined  to  be,  "  the 
niosTcoii!  right  which  one  person  in  certain  cases  possesses 
SSL  °^  detaining  property  placed  in  his  possession  be- 
longing to  another,  until  some  demand,  which  the 
former  has,  be  satisfied. "(a) 
Nature  This  right  of  lien  or  retainer  being  frequently 
'  advanced  as  a  defence  in  actions  of  trover,  and  as- 
sumpsit at  law,  and  in  suits  in  equity,  for  the  reco- 
very of  goods  and  money,  has  not  improperly  been 
assimilated  to  the  right  of  set  off;  since  these  two 
rights  are  certainly  so  far  analogous,  that  the  effect 
of  both  is  to  prevent  circuity  of  action,  an  incon- 
venience against  which  partial  provision  only  was 
made  by  the  common  law  in  the  allowance  of  the 
*3  former  right.  For  the  only  case  in  which  ^com- 
plete justice  could  be  done  at  common  law  in  the 
same  suit,  where  the  parlies  to  it  had  mutual  de- 
mands which  did  not  constitute  an  account  between 
them,  was  that  in  which  an  action  was  brought  to 
recover  some  specific  property,  which  the  law  con- 
sidered as  a  pledge  in  the  hands  of  the  party  from 
whom  it  was  demanded;  or,  in  other  words,  on 
which  the  party  had  a  lien.  In  which  case  the 
owner  was  not  allowed  to  recover  the  property 
without  first  discharging  the  debt  for  which  it  was 
:i  security.     In  other  cases  a  cross  demand  could 

((/)  Per  firosc,  J.  Hammonds  v.  Barclay,  'J  Cast, 235.  and  see  opinion 
ot  Buller,  .1.  in  I.'n  kbari'OW  ;•.  Mason,  6  East,  '25.  in  notis,  in  which  lie 
defines  a  lien  to  In-  a  qualified  right  which  in  given  rases  may  be  ex<  <■ 
cised  over  the  property  of  another.  And  Bee  judgment  of  Lord  Ellen- 
borough,  Ch.  .1  in  Wilson  v.  BalfOqr,  2  Carripb.  WJ  in  which  he  oh- 
irvi   ,  "  a  li<  n  is  a  righl  to  hold  " 


THE  LAW  OF  LIEN.  O 

not  be  advanced  as  a  defence,  but  the  party  was 
compelled  to  have  recourse  to  a  separate  action. 
To  remedy  this  hardship  the  right  of  set  off  was 
Created  by  the  legislature,  at  first  indeed  only  in 
cases  of  bankruptcy,  temporarily  by  4  Ann.  and 
subsequent  statutes,  and  perpetually  by  5  Geo.  2. 
c.  3.  s.  28.  by  which  it  was  enacted,  that  where 
mutual  credit  had  been  given,  or  mutual  debts  were 
due  between  the  bankrupt  and  any  other  person 
before  the  bankruptcy,  the  account  should  be  stated, 
and  the  balance  only  should  be  paid  on  either  side. 
Afterwards,  however,  by  2  Geo.  2.  c.  22.  s.  13.  and 
8  Geo.  2  c.  24.  s.  4.  the  right  *of  setting  off  was  *4 
given  in  all  cases  where  mutual  debts  were  due 
in  the  same  right.(6) 

But  though  these  rights  of  lien  and  set  off  fre- 
quently concur,  and  the  benefit  arising  to  the  party 
from  the  exercise  of  them  is  sometimes  the  same ; 
they  are  by  no  means  exactly  similar  with  respect 
to  either  their  extent,  or  their  effect  in  the  cases  to 
which  they  do  extend. 

With  regard  to  their  extent,  a  right  of  lien  may 
be  advanced  as  a  defence  in  an  action  at  law  or 
proceeding  in  equity(c)  for  the  recovery  of  specific 
goods  or  money.     But  the  statutes  for  setting  off 


(6)  Green  v.  Farmer,  4  Burr.  2214. 

(c)  In  cases  of  liens  on,  or  pledges  of,  personal  property,  courts  of 
equity  will  determine  exactly  as  a  court  of  law  would  decide  if  an  ac- 
tion of  trover  was  brought  for  the  property.  Jones  v.  Smith,  2  Ves. 
jun.  378.  And  whatever  may  be  set  off  in  equity,  on  the  ground  of 
lien,  may  likev/ise  be  set  off  in  an  action  of  trover.  Lempriere  v.  Pas- 
ley,  2  T.  P.  491.     And  see  Downman  v.  Matthews,  Prec.  Cha.  580 


4<  THE  LAW  OF  LIEN. 

mutual  debts  have  been  holden  not  to  extend  t© 
goods,  or  other  specific  property,  but  only  to  pecu- 
niary demands  on  one  side  and  the  other.(d)  Be- 
cause the  possession  of  such  specific  property  doe* 
not  properly  constitute  a  debtee) 

*The  statutes  relative  to  mutual  credit,  however, 
have  received  a  more  liberal  construction,  and  the 
courts,  taking  into  consideration  the  hardship  of  a 
person,  who  has  in  his  possession,  as  a  security, 
goods  on  which  he  has  a  lien  for  part  of  his  debt, 
being  obliged  to  relinquish  them,  without  pre- 
viously having  out  of  them  all  the  satisfaction  they 
can  yield  for  the  whole  of  his  debt,  have  always  in- 
clined to  consider  such  cases  as  within  the  clause 
of  mutual  credit,  wherever  the  circumstances  have 
afforded  an  apportunity  of  considering  the  transac- 
tion as  a  matter  of  account ;  or  of  implying,  from 
the  manner  of  dealing  between  the  parties,  an 
agreement,  that  the  goods  should  be  a  security  for 
the  whole  debt;  and  that  the  credit  was  given  on 
that  ground  ;  though  there  were  no  direct  evidence 
of  a  positive  agreement  for  that  purpose.(/) 

(<0  Green  v.  Farmer,  4  Burr.  2218. 

(>•)  Cullen,  209. 

(/)  Exparte  Deeze,  1  Atk.  228.  Exparte  Ockenden,  1  Atk.  235.  There 
is  another  point  in  which  the  rights  of  set  off  and  lien  differ  in  their 
extent.  A  lien  may  be  acquired  for  a  demand  against  which  the  sta- 
tute of  limitations  has  run  ;  for  the  operation  of  that  statute  discharges 
onlj  thi  nun,  and  docs  not  annul  the  debt;  and  therefore 

it  hut  1"  en  del  rtnined  that  if  a  creditor  obtain  possession  of  goods  on 
wliu  I.  he  has  a  lien  for  a  g*<  neral  balance,  he  ma\  hold  them  l>v  virtue 
of  his  lien,  though  thai  general  balance  consists  of  debts  barred  by  the 
ti  rtley,  3  Esp.  R.  81,     But  such  debts  cannot  1 
be  pleaded  in  bar  to  the  action,  the  plaintiff  may  reply 


THE  LAW  OF  LIEN.  *6 

*The  difference  between  the  several  rights  of  f- 
lien  and  set  off,  in  point  of  extent,  being  thus  no- 
ticed, their  different  effects,  in  the  cases  to  which 
they  extend,  is  to  be  next  considered.     In  cases  of 
lien,  the  property  on  which  it  exists,  being  consi- 
dered as  a  pledge,  may  be  detained,  though  it  be 
of  greater  value  than  the  debt  on  account  of  which 
it  is  withholden,  until  the  whole  of  that  debt  is  dis- 
charged.    But  in  cases  of  set  off,  under  2  Geo.  2. 
c.  22.  s.  23.  and  8  Geo.  2.  c.  24.  s.  4.  though  the 
debt  due  to  the  defendant  be  larger  than  that  he 
owes  to  the  plaintiff,  he  can  only  set  off  as  much 
of  it  as  is  equal  to  the  sum  for  which  he  is  sued, 
and  is  driven  to  a  separate  action  for  the  recovery 
of  the  rest.     On  the  other  hand,  in  the  case  of  lien, 
the  property  on  which  it  is  claimed  cannot  be  re- 
tained after  the  debts,  for  which  that  property  is 
considered  a  security,  are  paid;  though  other  debts 
be  still  owing  from  the  owner.     *But  in  cases  of 
set  off  all  mutual  debts  due  in  the  same  right  may 
be  set  off  by  the  defendant  to  the  amount  of  the 
debt  for  which  he  is  sued.     So  that,  although  en- 
tire satisfaction  to  the  claims  of  both  parties  may, 
under  some  circumstances,  it  cannot  always  be  ob- 
tained in  the  same  suit,  either  by  the  exercise  of 
the  right  of  lien,  or  of  that  of  setting  off  mutual 
debts  under  2  Geo.  2.  c.  22.  s.  13.  and  3  Geo.  2.  c. 
24.  s.  4.     But  the  statute  relating  to  mutual  credit 

the  statute  of  limitations.  Remington  v.  Stevens,  Str.  1271.  Or  if 
given  in  evidence  on  a  notice  of  set  off  may  be  objected  to  at  the  trial, 
Bui.  N.  P.  180 


4  THE  LAW  OF   LIEN. 

admits  of  complete  justice  being  done  to  both 
parties  in  the  same  suit,  in  every  case  to  which  it 
extends.  For  it  provides,  that  the  account  shall 
be  stated,  and  the  balance  paid,  on  which  ever 
side  it  may  be  due,  whether  to  the  plaintiff  or  the 
defendant.* 
Different      Having:  stated  thus  much  on  the  general  nature 

species  °  ~ 

and  01  i-  of  the  right  of  lien,  it  will  now  be  proper  to  explain 
liens.      the  modes  in  which  it  may  arise,  and  the  different 

species  into  which  it  is  divided.  Liens  either  ex- 
*  8        ist  by  common  law,  or  are  created  by  usage,(g)  *or 

by  express  agreement  ;(A)  and  they  are  by  the  law 


{g)  But  it  can  be  created,  it  seems,  by  the  usage  of  trade  only,  and 
where  goods  have  been  deposited  in  the  nature  of  a  pledge.  6  T.  R. 
263.     Accordingly  where  a  carpenter,  who  had  worked  for  some  time 
in  the  queen's  yards,  declined  working  there  any  longer,  and  the  sur- 
veyor re- fined  to  let  him  take  away  his  tools,  giving  in  evidence,  in  an 
action  of  trover  which  was  in  consequence  brought  against  him,  an 
usage  for  the  surveyors  of  the  queen's  yards  to  detain  the  tools  of 
workmen   in  order  to  compel  them  to    continue  working  until  the 
queen's  work  should  be  finished.     It  was  holden  that  the  action  lay  ; 
and  no  regard  was  paid  by  Holt,  Ch.  J.   before  whom  the  cause  was 
tried,  to  the  usage  insisted  upon  by  way  of  defence.     Baldwin  v.  Cole, 
6  .Mod.  212.    Bac.  Ab.   tit.  Trover.     Both  the  existence[l]  and  the  ex- 
of  liens  by  usage  are  matters  of  evidence      But  where  such  liens 
been  very  frequently  proved   to  exist,  it  seems  that  the  courts 
will  consider  their  existence  as  settled  law,  and  will  not  allow  it  to  be 
afterwards  disputed.     Naylor  v.  Mangles,  1  Esp.  109.  Spears  v  Hart- 
I  Esp,  81.   The  mere  opinion  of. witnesses  is,  however,  no  evidence 
to  prove  such  usage.     Syedsv.  Hay,  4  T.  It.  269 
(A)  Bxparte   Deeze,   1   Aik.  229.     Exparte  Ockendon,   1  Atk.  236. 
•  4  Burr.  22-21.  per  Urose,  J.    Kiikm.m  v,  Shawcvossj  6 
r.  K.  11.    Naylor  v.  Mangles,  l  Esp.  109. 

*  Th(  i  ■  oounl  ■  tnaj  be  b  danced  i    an  ■<    ion  at  law  as  well  as  before 

iei  ..     2  Aik.  49. 
[1]  1    \  I.    '_  •  2  : »    Rrec.  Cha.  580.  1  Esp.  109-  Oppenheim  v.  Kus- 
fePul  42. 


THE    L.\W    OF   LIEN.  3 

distinguished  into  two  species,  namely,  particular 
liens,  and  general  liens :  a  particular  lien  is  a  right 
to  retain  the  property  of  another  on  account  of  la- 
bour employed,  or  money  expended  on  that  *same  *  9 
property.  A  general  hen  is  a  right  to  retain  the 
property  of  another  on  account  of  a  general  balance 
due  from  the  owner.(i) 

The  doctrine  of  liens  having  taken  its  rise  upon 
principles  of  natural  equity  and  commercial  neces- 
sity, in  the  earliest  period  of  its  existence,  we  find 
only  the  first  species,  that  of  particular  liens,  allow- 
ed without  an  express  contract ;  and  even  that 
seems  to  have  been  admitted  only  in  cases  where 
the  justice  or  necessity  of  the  case  peremptorily 
demanded  its  allowance  ;  as  where  the  party  was 
obliged  by  law  to  receive  the  ^oods(k)  in  respect 
of  which  he  claimed  the  lien,  or  Avhere  he  had,  at 
his  own  peril,  labour,  or  expense,  saved  them  from 
loss  or  destruction  at  sea :  where  the  owner  had 
abandoned,  or  was  no  longer  able  to  protect 
them.(l) 

This  right,  however,  which  seems  to  have  been 
first  introduced  merely  on  principles  of  justice  and 
necessity,  was  afterwards  extended  to  a  far  greater 
length,  upon  those  of  policy  and  convenience  as 
well  as  of  justice ;  and  not  only  were  particular 
liens  admitted  in  many  more  instances  *than  those  *  10 
already  mentkmed,(m)  but  general  liens  were  al- 

(/)  Per  Heath,  J.  3  Bos.  and  Bull.  494. 
(A-)  See  post.  Chap.  II. 
(I)  '  Hartford  v.  Jones,  Ld,  Rayni.  393. 
m)  Post.  Chap.  II. 


1&  THE    LAW    OF    LIEN. 

lowed  to  be  claimed,  by  implication,  from  the 
general  usage  of  trade,  or  the  mode  of  dealing  be- 
tween the  parties,  and  without  any  express  con- 
tract for  that  purpose.  And  thus,  to  the  two  modes 
in  which  liens  might  before  subsist,  namely,  by 
common  law,  and  by  express  contract,  was  added 
a  third,  by  usage  ;  from  whence  is  implied  an 
agreement  by  which  the  goods  are  pledged  for  the 
payment  of  the  debt.(w) 

This  bias  in  favour  of  liens  appears  to  have  con- 
tinued for  a  long  period.(o)  But  of  late  years,  it 
has  taken  a  different  turn,  and  the  courts  seem  to 
have  thought  that  the  doctrine  has  been  carried 
full  as  far  as  true  policy  would  warrant,  and  have 
therefore  most  strongly  inclined  against  its  further 
11  cxtension.(p)  Yet  it  should  be  remarked,  *that 
whatever  difference  of  opinion  may  at  different  pe- 
riods have  been  manifested  with  respect  to  the  ex- 
tension of  liens,  in  general,  a  wide  distinction  has 
generally^  been  observed,  between  particular 
and  general  liens.  The  former  have  been  regard- 
ed with  a  more  favourable  eye,  as  founded  on  the 

(n)  Post.  Chap.  HI.     The  distinctions  between  liens  by  express  con- 
tract, and  linis    from  the  nature  of  dealing,  occurs  first  in  ex  parte 
228.  A.  D.  1748.  MontagurB.L.  237. 
(o)  Green  v.  Fanner,  4  Burr.  2221.  Wilkins  w.  Carmicael,  Doug.  97. 
Kirkman  v.  Bhawcross,  G  T.  R.  14.    Judgment  of  Chambre,  J.  in  Rich- 
ard oi  •  Bi         d  Pul.  126. 

{}>)  Ruahforth  v.  ftadfield,  7  East,  229.     The  courts  will  not  now  orl- 
i  a  lien  v.  ■  been  allowed  to  exist,  Hussey  i 

' ,  426. 
(g)  In  Kirkman  v.  Bhawcross,  6T.  R.  14.  the  court  considered  a  gene- 
atural  justice. 


THE    LAW    OF    LIEN.  11 

fiommon  law,  and  the  general  principles  of  justice: 
while  the  latter  have  been  looked  upon  with  jea- 
lousy, being  considered  as  encroachments  on  that 
law,  and  as  founded  solely  in  the  usage,  and  per- 
mitted only  for  the  benefit  of  trade.(Y) 

Having  given  this  brief  explanation  of  the  na- 
ture, origin,  and  different  species  of  lien,  according 
to  the  most  confined  sense  of  that  term,  I  will  now 
state  the  arrangements  *which  I  purpose  to  observe  *  12 
in  the  portion  of  this  treatise  which  is  dedicated  to 
the  consideration  of  liens.  My  intention  is,  first; 
to  lay  before  the  reader  the  general  rules  of  law, 
with  regard  to  particular  and  general  liens,  under 
three  heads  of  enquiry  :  namely,  first,  in  what  ca- 
ses these  rights  may  be  acquired  ?  2dly.  In  what 
cases  they  cannot  ?  3dly.  By  what  means  they  may 
be  divested  ?  And,  then,  to  consider  under  distinct 
heads  the  lien  of  each  particular  diameter  to  which 
the  law  has  specifically  decided  that  right  to  be- 
long. The  enquiry  as  to  the  cases  in  which  the 
right  of  a  particular  lien  may  be  acquired  will 
form  the  subject  of  the  next  chapter. 

(r)  Oppenheim  v.  Russell,  3  Bos.  and  Pul.  42.  Houghton  v.  Matthews, 
3  Bos.  and  Pul.  494.  In  the  judgment  of  Rooke,  J.  Richardson  v.  Goss, 
3  Bos.  and  Pul.  126.  he  says'  "  I  think  the  doctrine  of  general  liens  is 
not  to  be  favoured,  because  all  persons  who  claim  under  them  mus< 
have  been  guilty  of  neglect  in  suffering  goods,  upon  which  the  law  has 
given  them  a  special  lien,  to  go  out  of  their  hands,  without  indemnify 
ing  themselves  by  setting  up  a  claim  to  a  genenl  lien." 


*13 


I  HE    LAW    OF    LI  E.N. 


*CHAP.  II. 


In  what  cases  a  particular  lien  may  be  acquired ;  1st 
By  the  common  law ;  Idly.  By  express  contract  ■, 
Sdly.  By  a  delivery  through  persons  to  ivhom  the 
property  on  ivhich  the  lien  is  claimed,  does  not  be- 
long ;  as  servants,  &c, 


PARTICULAR  liens  exist  either,  1st.  By  the 

common  law  ;  or  2dly,  By  express  contract.     The 

cases  in  which  a  particular  lien  may  exist  by  the 

common6  common  law,  are  divisible  into  two  classes.     1st. 

Where  a  particular  lien  is  claimable  by  persons 

who   come   under   the    denomination  of  bailees. 

2dly.  Where  it  is  claimable  by  persons  who  do  not 

fall  within  that  denomination.     With  respect  to 

By  bai-  the  first  of  these   classes,  a  notion  seems  to  have 

been  entertained,  that  a  particular  lien  was  the 

common  right  of  all  bailees  for  reward  :  and  that 

where  a  debt  accrued  from  the  bailor  to  the  bailee 

in  consequence  of  the  bailment,  the  latter  might 

detain  the  thing  bailed,  until  the  debt  was  dis- 

!  i       charged,   without  any  special  agreement  to  *that 

cflect-fffj     But  however  consonant  to  equity  or 

policy  lliis  might  appear  at  first  sight,  as  an  uni- 

al  rule,  the   application  of  it  to  mam   cases 

aid  certainly  be  attended  with  great  inconve- 

'„)  See  Christian's  Notes,  2 $1.  Com.  453. 


THE    LAW    OF   LIEN.  14 

nience,  as  well  as  injustice  ;  and  upon  this  ground, 
we  find  exceptions  have  been  made  to  it  in  more 
than  one  instance.  Thus  in  the  case  of  Chapman 
v.  Allen,  Cro.  Car.  271.  it  was  determinded  that  a 
person  who  took  cattle  to  agist  could  not  detain 
them,  against  the  person  to  whom  the  owner  had 
sold  them,  for  the  value  of  their  agistment.  And 
it  was  laid  down  by  Lord  Holt,  in  the  case  of 
York  v.  Greenaugh,  Ld.  Raym.  866.  and  decided 
by  Lord  Kenyon,  in  the  case  of  Hunter  v.  Berke- 
ley, Esp.  Ni.  Pri.  583.  that  a  livery  stable-keeper 
has  no  lien  on  the  horses  standing  at  livery  in  his 
stable  for  the  price  of  their  stabling  and  food. 

Another  rule,  less  extensive  than  the  preceding, 
with  regard  to  the  cases  in  which  a  particular  lien 
may  be  claimed  by  bailees,  has  been  expressly 
laid  down  in  the  case  ex  parte  Deeze,  1  Atk.  228. 
and  appears  to  have  been  taken  for  granted  in 
*other  cases  ;(6)  namely,  that  wherever  goods  are  *15 
delivered  to  a  tradesman  for  the  execution  of  the 
purposes  of  his  trade  upon  them,  he  has  a  particu- 
lar lien  on  them.  A  third  rule,  however,  still  less 
extensive,  but  more  certain  than  either  of  the  pre- 
ceding, is  that  mentioned  in  the  first  chapter  ; 
namely,  that  where  the  party  is  from  the  nature  of 

(6)  See  ex  parte  Ockendon,  1  Atk.  236,  and  Houlditch  r.  Milne,  S 
Esp.  85.  where  a  coachmaker  was  allowed  to  have  a  particular  lien,  to 
which  he  could  not  be  entitled  by  the  common  law,  unless  all  trades 
have  that  lien  by  the  common  law  ;  because  the  trade  of  a  coachmaker 
was  not  introduced  into  this  country  until  after  the  reign  of  Queen 
Elizabeth.  But  see  7  East,  229.  Lord  Ellenborough,  however,  ap* 
pears  there  to  be  speaking  only  of  general  liens. 

4 


15  THE    LAW   OF    LIEN. 

his  occupation  under  a  legal  obligation  to  receive, 
and  be  at  trouble  or  expense  about  the  personal 
property  of  another,  in  every  such  case  he  is  enti- 
tled to  a  particular  lien  on  it :  for  there  are  certain 
trades  and  occupations,  the  public  exercise  of  which 
the  common  law  has  considered  indispensably  ne- 
cessary to  the  general  convenience  of  the  commu- 
nity ;  and  has  therefore  obliged  all  persons  who  un- 
dertake to  carry  on  such  trades,  to  accept,  as  far  as 
their  means  will  admit,  employment  from  every 
16  individual  *who  offers  it  with  a  reasonable  reward. 
And  in  recompense  for  the  burden  which  it  has 
thus  imposed,  the  same  law  has  allowed  the  trades- 
men a  particular  lien  upon  the  thing  delivered  to 
him  in  the  course  of  his  business  for  the  labour  or 
expense  he  is  obliged  to  employ  upon  it.(c)  On 
this  ground,  common  carriers,(d)  innkeepers,(e) 
and  farriers,(/)  have  a  particular  lien  by  the  com- 
mon law.  To  what  other  trades  the  obligation  of 
accepting  employment  from  all  persons  indiscrimi- 
nately extends,  does  not  appear  to  have  been  ever 
precisely  determined.  The  rule  laid  down  by 
Lord  Holt,  in  Lane  v.  Cotton,  12  Mod.  484.  Ld. 
Raym.  646.  S.  C.  is,  that  wherever  any  subject 

(()  it  was  said  by  Ryder,  Ch.  J.  delivering  the  opinion  of  the  court  in 
Brennant  v  Current,  T.  28  &  29  Geo. 2.  B.  R.  MSS.  cited  Selw.  N.  P. 
.  thai  tie  had  ao4  found  it  laid  down  us  a  general  rule,  that  the  re- 
•  ;•  was  co-extensive  with  the  obligation  to  receh 
Hu1  i,1  Bsp.  R.  109. 

(,/,  Vorfci       I  renaugh, Ld.  Raymond,  867 ;  Kirkmanv  Shawcro 
I"   R.  17;  Dppenheim  v.  Russel,  8.  Bos.  &  Pul.  \i. 

I      ■    cited  tnnot<  d    and  Naylor  v.  Mangles,  1  Esp<  109. 
(y*)  b&   Bat    kb  til  Trover,  and  post  lien  oi  fai 


THE    LAW   OF    LIEN.  *17 

takes  upon  himself  *a  public  employment  for  the 
benefit  of  his  fellow  subjects,  he  is  eo  ipso  bound 
to  serve  the  subject  in  all  things  that  are  within 
the  reach  and  comprehension  of  that  employment. 
It  has  however  been  determined  that  a  carpenter 
is  under  no  such  obligation.  And  though  the  last 
of  the  three  rules  which  have  been  stated  in  this 
chapter,  with  regard  to  the  particular  lien  of  bailees, 
(namely,  that  wherever  a  party  is  compellable  by 
law  to  receive  goods,  he  is  by  the  same  law  enti- 
tled to  a  lien  upon  them,)  appears  to  be  the  most 
certain  ;  the  second,  that  a  particular  lien  is  the 
common  right  of  all  trades,  may  be  correct,^)  *as      *  13 

(3)  As  this  rule,  however,  may  appear  rather  vague  and  uncertain, 
wherever  it  hx->  been  expressly  decided  that  any  particular  trade  is  en- 
titled to  this  sort  of  lien,  by  the  common  law,  it  will  be  specified  under 
the  head  of  that  trade:  And  as  there  are  some  other  cases  besides 
those  mentioned  in  the  text,  in  which  it  has  been  expressly  decided 
that  no  particular  lien,  and  some  in  which  (though  there  is  no  express 
decision  concerning  them)  from  dicta  and  observations  of  the  judges  it 
remains  uncertain  whether  any  particular  lien  exists,  and  any  of  which 
it  would  be  improper  to  pass  over  without  notice  ;  I  shall  here  specify 
them  :  they  consist  in  certain  cases  of  lien  on  ships  For  though  both 
by  the  civil  laws  of  the  Roman  empire,  and  the  maritime  laws  of  Eu- 
rope,(l)  the  principles  of  which  have  always  in  great  measure  governed 
the  proceedings  of  our  courts  of  admiralty,(2)  every  person  who  has 
incurred  expense,  or  employed  labour,  in  fitting  out,  supplying  or  re- 
pairing ;  and  by  the  latter  des  cription  of  laws,  every  person  who  has 
earned  wages  in  navigating(S)  a  ship,  is  allowed  a  lien  or  specific  re- 
medy in  rem,  for  his  remuneration,(4)  though  no  instrument  or  express 
agreement  be  made  for  that  purpose.  In  this  country  it  is  only  in  par- 
ticular cases  that  the  common  law  permits  that  lien  to  be  carried  into 

(1)  Dom.  Civil  Law,  B  3.  tit.  1.  s.  5.  Abbot  on  Ship  133,  S 

(2)  3  Bla.  Com.  69 

(3)  Abbot,  458. 

(4)  Abbot,  134. 


18  THE    LAW   OF    LIEN. 

there  does  not  appear  to  be  any  determination  ex~ 
19      pressly  against  it,  and  as  it  may  *be  collected  from 

effect  by  process  in  the  court  of  admiralty,  and  these  are  where  the 
demand  arises  for  repairs  done  or  necessaries  supplied  in  a  foreign 
port,(5)  or  for  the  wages  of  seamen  and  officers  beneath  the  rank  of  a 
captain  or  master ;  though  the  contract  for  such  wages  be  made  on 
land,  provided  it  be  in  the  usual  terms,  and  not  by  writing  under  seal. 
But  the  captain  who  has  a  demand  for  wages. (6)  and  the  tradesmen 
who  have  demands  for  necessaries  furnished,  or  repairs  done  to  the 
ship(7)  in  this  country,  are  confined  to  their  remedy  at  common  law. 
And  there  do  not  appear  to  be  any  cases  in  which  it  is  expressly  de- 
cided that  a  right  of  lien  exists  on  a  ship  by  the  common  law  except 

(5)  Where  the  necessaries  are  furnished,  or  the  repairs  done  during 
the  course  of  the  voyage  at  sea,  or  in  a  foreign  port,  the  cap  Lain  or 
master  is  not  only  at  liberty  to  give  the  person  furnishing  such  neces- 
saries or  doing  such  repairs,  a  lien  upon  the  ship,  3  Mod.  244  1  Ld, 
fcaym.  152.  2  Ld.  Raym.  982.  S  T.  R.  267.  or  freight,  Abbot,  144.  by  an 
express  hypothecation  ;  but  in  every  contract  made  under  such  chcum- 
stances  the  maritime  law  will  imply  an  hypothecation,  2  Ld.  Ravm. 
805.  and  the  vesssel  may  be  proceeded  against  in  the  court  of  admi- 
ralty without  any  danger  of  a  prohibition  from  the  courts  of  common 
law.  But  though  the  master  or  captain  of  a  ship  may  give  others  a  spe- 
cific remedy  against  the  ship  itself  by  employing  diem  to  furnish  it 
with  necessaries  or  repairs  hi  the  course  of  the  voyage,  he  cannot  ac- 
quire alien  on  the  ship  himself  for  any  advances  he  may  make  for  the 
owners,  or  for  any  repairs  done  at  his  expense  abruad,  though  they  be 
absolutely  necessary  to  the  preservation  of  the  ship.  Husscy  v.  Chris- 
tie, 9  East,  426.  13  Ves.  jun.  434.  And  it  seems  he  has  no  lien  for  ne- 
cessaries or  repairs  done  at  home  at  his  expense,  noug.  979.  East,  4S3. 
But  if  he  pays  for  such  repairs  after  the  bankruptcy  of  the  owners,  and 
demand  made  by  the  assignees,  and  after  possession  of  the  ship  lias 
been  relinquished  both  by  himself  and  the  party  furnishing1  the  repairs 
or  necessaries,  he  certainly  has  no  lien.    Doug.  97. 

(6)  The  indulgence  which  the  law  allows  to  all  the  mariners  and 
officers  below  the  rank  of  captain  or  master,  of  proceeding  against  the 
ship  itself  for  their  wages,  in  the  court  of  admiralty,  is  refused  to  the 

in  or  master,  upon  tlie  ground  that  he  contracts  individual!}  with 
iwners,  and  trusts  to  their  personal  ci  edit,  and  not  to  that  of  the 
!  Ld.  Baym.  576.  632.  Doug.  101.  and  sec  2  P.  Wins.  367.  contra' 
■    Ibbot,  li4 


1HE    LAW    OF    LIE\~.  19 

several  decisions  that  the  right  of  retainer  by  the 
common  law,  *is  not  now  confined  to  those  trades,      *  2© 

the  case  of  salvage.  For  though  in  the  case  of  Rich  v.  Coe,  Cowp.  636. 
Lord  Mansfield,  in  delivering  the  judgment  of  the  court,  lays  it  down 
that  whoever  supplies  a  ship  with  necessaries  has  a  treble  security  : 
1st.  The  person  of  the  master  ;  2d.  The  specif  c  ship ;  and  3d.  The  per- 
sonal security  of  the  owners  :  and  though  in  Farmer  v.  Davies,  IT.  It. 
109.  his  lordship  repeats  the  same  doctrine ;  these  two  dicta  of  Lord 
Mansfield  are  not  only  unsupported  as  far  as  I  can  discover  by  anv 
other  decision  in  dictum,  except  that  of  Lord  Kenvon  in  Whiter.  Bar- 
ing, 4  Esp.  R.  22.  at  nisi  prius  (and  in  which  case  a  new  trial  was 
granted,  on  the  ground  of  a  mistake  of  the  judge  in  point  of  law,  but 
neve  had  the  cause  been  settled.)  But  the  correctness  of  them  is 
doubted  by  Lord  Kenyon  himself,  in  Westerdell  v.  Dale,  7  T.  R.  312. 
ani  they  are  contradicted  by  the  tenor  of  almost  all  the  other  deci- 
sions upon  this  subject.  Mr.  Abbot,  however,  in  his  excellent  Trea- 
tise on  the  Law  relative  to  Merchant  Sl.ips  and  Seamen,  though  he 
doc;,  not  allow  the  doctrine  of  Lord  Mansfield  in  the  cases  of  Rich  v. 
Coe,  and  Farmer  v.  Davies,  to  be  law,  to  the  full  extent  it  is  there  laid 
down,  nor  admit  that  the  law  of  England  has  adopted  the  rule  of  the 
civil  law  with  regard  to  repairs  and  necessaries  furnished  here  in  Eng- 
land ;  yet  seems  to  think,  that  a  lien  may  exist  on  a  ship,  at  least  in 
one  instance,  by  the  common  law.  See  part  2.  chap.  III.  sect.  9.  page 
135.  where  it  is  said,  "  a  shipwright  indeed  xoho  lias  taken  a  ship  into  his 
otim possession  to  repair  it,  may  not  be  bound  to  part  ivith  possession,  until 
he  is  paid  for  the  repairs,  any  more  than  a  taylor  or  smith,  or  any  other  arti- 
ficer, in  regard  to  the  object  of  Ms  particular  trade.  But  a  shipwright  who 
has  once  parted  with  possession  of  the  ship,  or  has  worked  upon  it 
without  taking  possession,  and  a  tradesman  who  has  provided  ropes, 
sails,  provisions,  or  other  necessaries,  are  not  by  the  law  of  England 
preferred  to  other  creditors,  nor  have  any  particular  lien  upon  the  ship 
itself,  for  the  recovery  of  their  demands."  Mr.  Abbot  has  not  supplied 
us  with  any  authorities  in  support  of  the  opinion  expressed  in  the  for- 
mer part  of  the  passage  here  cited  ;  nor  can  any,  I  believe,  be  adduced 
which  directly  confirm  it.  But  from  the  reason  given  by  Lord  Chancel- 
lor Hardwicke,  in  ex  parte  Shank,  1  Atk  234.  why  the  shipwright  in 
that  case  had  no  lien  on  the  ship  for  repairs,  namely,  because  lie  had 
parted  with  possession  ;  it  may  be  implied  that  his  lordship  was  of 
opion,  that  where  the  shipwright  had  not  parted  with  possession,  he 
might  claim  a  lien.  And  if  the  rule  laid  down  by  the  same  Lord  Chan- 
cellor, in  the  preceding  case,  ex  parte  Deeze,  that  all  tradesmen  hay. 


k2\  THE    LAW   OF    LIEN. 

in  which  there  is  an  obligation  to  receive  *thc 
goods  ;  though  the  right  was  most  probably  origi- 

*  22  nally  founded  upon  that  Obligation.  For  dyers 
have  certainly  the  option  of  receiving  or  refusing 
goods  from  any  one  who  may  send  them  for  the  pur- 
pose of  being  dyed  ;  and  yet  it  seems  to  be  ad- 
mitted, in  the  cases  of  Kirkman  v.  Showcross,  6  T. 
R.  14.  and  Close  v.  Waterhouse,  cited  6  East,  523. 
note,(e)  that  they  have  a  particular  lien  on  all  goods 
they  do  receive  for  that  purpose.  Nor  does  there 
appear  to  be  any  case  in  which  it  is  decided  that, 
taylors  are  bound  to  accept  employment  from  any 
one  that  offers  it ;  but  whether  they  are  or  are  not 
under  such  an  obligation,  it  is  clear  that  they  have 
a  particular  lien  by  the  common  law  upon  the  cloth 
placed  in  their  hands  for  the  execution  of  the  pur- 
poses of  their  trade. 

By  per-      2dlv.  AVe  are  to  inquire  in  what  cases  a  parti- 

not  •  11.11  in 

bailees,  cular  hen  may  be  claimed  by  persons  who  do  not 
come  under  the  denomination  of  bailees ;  and  a 
twofold  division  may  likewise  be  made  of  this 

i  particular  lien  on  goods  for  work  done  to  llicm  in  the  course  of  their 
respective trades,-be  correct,  a  shipwright  certainly  has  a  lien  upon  a 
ship  for  repairs  done  to  il  in  this  country.  But  this  rule,  it  is  to  be 
observed,  does  not  appear  very  certain  ;  and  in  Wilkins  t>.  Carmichael, 
97.  Lord  Mansfield  himself  seems  to  doubt  the  existence  of  the 
carpenter's  lien  for  repairs  done  to  the  ship.     It  may  seem  also  incon- 

■t  with  commercial  policy,  that  the  detention  of  a  whole  ship 
should  be  allowed  for  a  debl  perhaps  comparatively  trifling.  The 
argument,  however,  does  not  apply  against  a  ship  builder's  hav- 
ing :<  lien  on  the  :;liip  while  it  remains  in  his  possession;  for  die  price 
of  building  it;  to  which  he  must  be  entitled  in  common  with  other 

orsofgood       8(    post.  Lienof  Vendor,  and  Daniel  v.  Russell,  1" 


THE  LAW  OF  LIEN.  22 

part  of  the  subject;  1st,  Where  the  goods  come 
into  the  possession  of  the  party  by  finding,  and  he 
has  been  at  some  trouble  or  expense  about  them. 
And,  2d,  Where  the  goods  have  been  taken  posses- 
sion of  under  some  *legal  right,  and  expense  ne-  *  23 
cessarily  incurred  for  their  preservation. 

As  to  the  first  division,  whenever  any  one  has,  where 
at  his  own  labour,  risque,  or  expense,  preserved  come  in- 
the  property  of  another  from  loss  at  sea,  when  the  posses- 
owner,  or  those  entrusted  with  the  care  of  it,  had  JjJJ  °^ 
abandoned,  or  were  no  longer  able  to  protect  it,  he  *y  cla™_ 
is  entitled  by  the  common  law  to  retain  the  pro-  lien  by 

1       .11  j  t  finding'. 

perty  saved,  till  a  just  compensation  be  made  to 
him  for  the  trouble,  peril  or  expense,  he  may  have 
incurred.(/i)     The  principles  *upon  which  this  pri-      *  24 

(A)  Hartford  v.  Jones,  1  Ld.  Raym.  393.  Abbot  on  Ship.  383.  and  see 
Hamilton  v.  Davis,  5  Burr.  2732.  Baring  -v.  Day,  8  East,  57.  This 
right  of  lien  for  salvage  appears  to  have  been  also  recognized  by  the 
statutes  which  have  at  different  periods  been  passed  respecting  wrecks 
and  salvage.  The  27  Ed.  3.  stat.  2.  c.  13.  provides,  that  goods  cast 
away,  and  not  coming  under  the  denomination  of  wrecks,  shall  be  de- 
livered up  by  the  salvers  to  the  owner;  the  latter  paying  the  former  a 
proper  compensation  for  their  trouble.  But  the  most  important  provisions 
with  relation  to  this  subject  are,  12,  Ann.  stat.  2.  c.  13.  26  Geo.  2.  c.  19. 

'  Geo.  3.  c.  130.  s.  21.  and  49  Geo.  3.  c  122.  s.  32.  for  wherever 
the  assistance  is  given,  and  die  salvage  effected,  in  consequence  of  an 
application  by  the  master  or  chief  officer  to  any  of  the  public  officers 
appointed  by  thes  the  purpose  of  affording  such  assist- 

ance, the  salvors  acting  under  such  officers  cannot  claim  any  lien  o'r 

t  detaining  rty  by  the  common  law,  but  must  resort  to 

the  remedy  afforded  by  those  statutes  on  such  occasions.  And  when- 
ever an  adjustment  of  the  salvage  has  been  made  according  to  the  pro- 
of those  statutes,  and  the  sum  awarded  tendered,  no  lien  can 
be  claimed  for  any  further  salvage.  The  12  Ann.  stat.  2.  c.  18.  it  should 
be  observed,  extended  only  to  cases  where  the  services  of  the  salvor  are 

lied  by  virtue  of  it<  provisions  through  the  medium  of  the  public 


24  THE  LAW  OF  LIEN. 

vilege  is  allowed,  are  those  of  public  policy  and 
commercial  necessity ;  but  it  is  confined  to  cases 
in  which  the  property  is  saved  from  loss  at  sea;  for 
if  every  man  who  finds  the  property  of  another, 
which  happens  to  have  been  lost  or  mi?laid,  and 
*25  voluntarily  puts  himself  to  *some  trouble  or  ex- 
pense to  preserve  the  thing,  and  to  find  out  the 
owner,  were  to  have  a  lien  upon  it  for  the  casual, 
fluctuating,  and  uncertain  amount,  which  he  might 
reasonably  deserve  to  have,  great  inconvenience 
would  ensue.  The  owners  of  some  kinds  of  pro- 
perty would  have  not  only  the  common  accidents 
from  the  carelessness  of  their  servants  to  guard 
against,  but  also  the  wilful  sttempts  of  ill-designing 
people  to  turn  such  property  loose,  in  order  that 
they  might  be  paid  for  the  finding  it.  And  even 
where  the  property  had  been  really  lost,  the  owners 
in  seeking  to  recover  it  from  the  finder  in  an  action 
of  trover,  would  be  placed  in  a  very  awkward  situa- 


afficers  therein  named  ;  and  in  the  case  of  Baring-  r.  Bay,  8  East,  5~ 
where  the  application  for  assistance  was  made  by  the  commanding'  offi- 
cer of  the  stranded  vessel,  not  to  ihc  custom-house  officer,  but  to  a 
stranger,  and  the  salvage  was  effected  by  his  means,  under  the  inspec- 
tion, indeed,  of  two  officers  of  the  customs,  but  without  their  taking1 
any  part  in  it,  except  so  far  as  was  necessary  to  secure  the  duties  due 
to  the  crown  ;  it  was  decided  to  he  a  case  not  within  the  intent  of  the 
BtatUte.  And  the  26  Geo.  ;'>.  c.  19.  S.  5.  applies  only  to  the  cases  of  vo- 
luntary salvors,  to  which  it  extends  the  regulations  of  the  12  Ann.  st. 
2.  c.  13.  as  to  the  mode  of  adjusting  and  recovering  the  quantum  of 
talvagft  But  by  48  Geo  3.  c.  1-50.  s.  21.  and  by  49  Geo.  3.  c.  122.  s. 
J  the  same  regulations  are  extended  to  the  cases  of  persons  acting 
under  the  authority  of  Ihc  owners  and  commanders  of  the  ships  saved  ; 

and  furtht  r provisions  are  made  with  respect  to  the  mode  of  adjusting 


THE  LAW  OF  LIEN.  25 

don,  if  they  were  obliged  at  their  peril  to  make  a 
tender  of  a  sufficient  recompence,  before  they 
brought  the  action ;  for  such  owners  must  always 
pay  too  much,  because  they  can  have  no  means  of 
knowing  exactly  how  much  will  be  considered  suffi- 
cient. And  though  there  are  cases,  in  which  it  is 
necessary  that  the  owner  of  the  property  should 
Submit  to  this  inconvenience,  it  is  more  fit,  in  ge- 
neral, that  he  who  claims  the  reward,  should  take 
Upon  himself  the  burden  of  proving  the  nature  of 
the  service  he  has  performed,  and  the  quantum  of 
the  recompence  which  he  demands;  instead  of 
""throwing  it  upon  the  owner  to  estimate  it  for  him,  *  26 
at  the  hazard  of  being  nonsuited  in  an  action  of 
trover.  For  these  reasons  in  every  case  (excepting 
that  of  the  salvage  of  goods  at  sea)  in  which  the 
finder  of  property  lost  has  claimed  a  lien  upon  it 
for  the  expense  or  trouble  he  has  voluntarily  in- 
curred about  it,  the  claim  has  been  disallowed, 
and  the  owner  has  recovered  without  satisfying 

it-O') 

2dly.  With  respect  to  the  second  division  of  this    where 
head ;  where  the  goods  have  been  taken  posses-  goodsare 
sion  of  under  some  legal  right,  and  expense  neces-  ^2s- 
sarily  incurred  for  their   preservation;    onlv   twosio"of 

J  .  under 

cases  appear  to  have  occurred  which  may  be  pro-  s°me  ie- 
perly  classed  under  it.     These  are  where  the  lord  S    *S 
of  a  manor  seized  a  beast  as  an  estray,  and  was  at 
the  expense  of  keeping  it  for  some  time  after  he 

(i)  Nicholson  v.  Chapman,  2  II  Bla.  254.    Binstead  v.  Back,  2  Bla. 
R.  1117 


2d  the  law  or  LIEN. 

had  proclaimed  it ;  and  the  owner,  within  a  year 
and  a  day  after  the  proclamation,  came  and  de- 
manded it,  and  upon  the  lord  refusing  to  deliver  it, 
brought  trover,  without  having  first  tendered  a  sa- 
*21  tisfaction  for  the  keeping  of  iU(k)  *for  want  of 
which  it  was  holden  that  the  action  would  not  lie. 
And  where  an  horse  was  distrained  to  compel  an 
appearance  in  an  hundred  court ;  and  it  was  deter- 
mined, that,  after  appearance,  the  plaintiff  could 
not  justify  detaining  the  horse  until  his  keep  was 
paid  for.f  I) 
B?  ex-      2dly.  As  to  the  cases  in  which  a  particular  lien 

press  J  * 

contract.  may  exist  by  express  contract.  This  right  may 
be  created  in  any  case,  where  the  parties  chuse 
expressly  to  stipulate  for  it,(?w)  which  is  generally, 
either  where  goods  are  placed  in  the  hands  of  a 
person  for  the  execution  of  some  particular  pur- 
pose upon  them,  with  an  express  contract  that  they 
shall  be  considered  as  a  pledge  for  the  labour  or 
expense  the  execution  of  that  purpose  may  occa- 
sion ;  or  where  property  is  merely  pawned  or  deli- 

*28      vered  for  bare  custody  to  another  for  the  *sole  pur- 

(k)  Taylor  «,  James,  2  Rol.  Ab.  92.  (m.)  pi,  3.  Bac.  Ab.  Trover  BuL 
N.  P.  45.  S.  C  But  according  to  the  decision  of  Henley  v.  Welch* 
Oalk.  686.  11  Mod.  89.  S.  C  unless  the  lord  makes  a  demand  of  certaif 
amends,  a  general  tender  of  amends  will  be  sufficient.  A  distinction 
being  there  made  between  the  case  of  an  owner  of  an  estray,  and  that 
of  an  owner  of  cattle  damage  feasant,  the  latter  being-  considered  ft 
wrong-doer,  and  the  former  not  so. 

(1)  Lcnton  v.  Cook,  H.  9  Geo.  2.     Bui.  N.  P.  45. 

(w»)  Chapman  «,  Allen,  Cro  Car.  271      And  sec  Kirkman  V.  Shaw    ■ 
-.ross,  6  T   R.  14. 


THE    LAW    OF    LIEN.  28 

pose  of  being  a  security  for  a  loan  made  to  the 
owner  on  the  credit  of  it. 

3dly.  Are  to  be  considered  the  cases  in  which  Through 

'  persons 

a  particular  lien  may  be  acquired  through  persons  to  whom 
to  whom  the  property  on  which  it  is  claimed  does  perty 
not  belong,  as  servants,  &c.     Particular  liens  may  belong. 
be  derived  through  the  acts  of  servants  or  agents  JJ^ 
acting  within  the  scope  of  their  employments.    As,  &c 
if  a  servant  deliver  cloth  to  a  taylor  to  make  his 
master's  liveries  ;  the  taylor  will  have  a  lien  upon 
the  cloth  for  the  value  of  the  work  done  upon  it.(w) 
And  wherever  a  person,  who   delivers   property 
which  does  not  belong  to  him  to  another  for  the 
execution  of  the  purposes  of  the  other's  trade  upon 
it,  is  invested  by  the  owner  with  the  right  or  au- 
thority to  dispose  of  the  property  in  that  way,  the 
person  to  whom  it  is  delivered  shall  not  be  defeat- 
ed of  the  particular  lien  which  the  common  law 
allows  him  for  the  trouble  or  expense  he  may  have 
incurred  about  that  property,  by  the  owner's  co- 
ming forward  and  claiming  it.(o)     Where,  too,  a 
person  *in  whose  hands  the  property  of  another  is      *  29 
placed  for  the  execution  of  the  purposes  of  his 
trade  upon  it,  by  an  agent  who  has  a  power  from 
the  owner  of  disposing  of  it  for  those  purposes,  but 
none  of  raising  money  upon  the  credit  of  it,  ad- 
vances money  or  gives  acceptance  on  the  credit  of 

(w)  Per  Lord  Ellenborough,  delivering  the  opinion  of  the  court  in 
Husscy  v.  Christie,  9  East,  433. 

(o)  Richardson  v.  Goss,  3  Bos.  &  Pal.  1 19.  Pultney  v.  Keymer,  3  Esp. 
182,  D.  Grose,  J.  delivering  the  judgment  of  the  court,  in  Hammond 
".<  Barclay,  2  East,  237.  and  see  post,  Lien  of  Insurance  Broker,  note 


29  THE    LAW    OP    LIEN. 

that  property  to  the  agent,  and  is  ignorant,  at  the 
time  of  the  receipt  of  it,  that  ti  e  latter  is  not  the  real 
owner;  he  may  retain  it  against  the  real  owner, 
until  he  is  paid  the  money  so  advanced,  or  indem- 
nified against  the  liability  to  which  he  has  so  sub- 
jected himself.(j?) 

And  if  a  person  advances  money,  or  gives  ac- 
ceptances upon  the  faith  of  a  consignment  of  goods 
to  him  for  the  execution  of  the  purposes  of  his 
trade  upon  them  ;  but  before  the  goods  arrive  in 
his  bands,  the  property  in  them  is  transferred  from 
the  consignor  to  a  third  person,  who  is  not  able  to 
pountern  and  them  before  they  come  into  the  pos- 
session of  the  consignee,  it  seems  that  the  latter 
may  retain  them  against  such  third  person,  for  any 
sum  he  may  have  advanced,  or  for  which  he  may 
30  *have  made  himself  liable  upon  the  credit  of  them, 
as  well  as  for  the  expense  or  trouble  he  may  have 
incurred  in  the  execution  of  the  purposes  of  his 
trade  upon  them.(g') 

(p)  Ante,  note  (o.) 

(?)  Richardson  v.  Goss,  3  Bos.  &  Pul.  IIP 


THE  LAW  OF  LIEN.  *3l 


*CHAP.  III. 


In  what  cases  a  general  lien  may  be  acquired.  1st. 
By  the  general  usage  of  trade  ;  2d.  By  the  par- 
ticular usage  of  the  parties ;  3d.  By  express  agree- 
ment ;  $>th.  Through  persons  to  ivhom  the  pro- 
perty on  which  the  lien  is  claimed,  does  not  belong, 
as  servants,  &c. 

THE  right  to  a  general  lien  can  exist  only  by 
the  general  usage  of  trade,  by  the  particular  usage 
of  the  parties,  or  by  express  agreement.    1st.  With     Bytiit 
respect  to  the  cases  in  which  a  general  lien  may  usage  of 
be  acquired  by  the  general  usage  of  trade  :  that 
usage  is  presumed  to  have  been  founded  on  con- 
tracts repeated  so  frequently,  and  so  notorious,  that 
every  body  must  be  considered  as  bound  to  take 
notice  of  \i.(a)     And  it  is  clear,  that  an  usage  of 
any  trade,  for  the  persons  who  -carry  it  on,  to  have 
a  lien  for  their  general  balance,  so  general,  uni- 
form, and  frequent,   as  to  warrant  an  inference, 
that  the  party,  against  whom  the  right  is  claimed, 
had  knowledge  of  it,  and  contracted  *with  refer-      *  32 
ence  to  it,  will  be  sufficient  to  establish  such  a 
Y\(m.(b)     But  as  general  liens  are  considered  COn- 
fa)  Per  Rooke,  J  Oppenheim  v.  Russel,  3  Bos.  and  Pul.  50. 
(b)  It  seems,  that  the  lien  for  a  genera]  balance,  which  the  usage  of 
certain  trades  entitles  those  who  exercise  them  to  claim,  is  generally 


32  IHE   LAW   OF    LIEN. 

trary  to  the  policy  of  the  common  law,  and  to  pub 
lie  convenience,  and  an  infringement  upon  the 
system  of  the  bankrupt  laws,  (the  object  of  which 
is,  to  distribute  the  debtor's  estate  proportionally 
amongst  all  the  creditors  :)  to  establish  a  claim  to 
such  a  lien  upon  the  ground  of  the  general  usage 
of  any  trade,  strong  evidence  would  be  required  of 
the  frequency  and  notoriety  of  the  usage.  And 
in  cases  where  the  party  Maiming  the  lien  is, 
from  the  nature  of  his  trade,  under  a  legal  obliga- 
tion to  accept  employment  from  any  one  who 
offers  it,  and  for  that  reason,  has  a  right  to  a  par- 
ticular lien  upon  property  entrusted  to  him  m  the 
course  of  his  trade  ;  the  evidence  of  any  usage  for 
the  extension  of  that  lien  to  a  lien  for  his  general 
balance,  ought  to  be  proved  by  still  stronger  evi- 
dence than  is  necessary  in  cases  where  no  such 
obligation  exists.  For  in  the  latter  cases,  though 
the  introduction  of  general  liens  may  be  against 
the  public  convenience,  and  contrary  to  the  spirit 
of  the  bankrupt  laws  ;  it  does  not  directly  infringe 

confined  to  such  general  balance  as  arises  from  work  done  in  the  aourse 
>f  those  trade:;  ;  and  does  not  extend  to  money  lent,  as  any  collateral 
matter.  But  from  the  case,  ex  parte  Deeze,  1  Atfc.  228.  where  the 
general  balance  of  a  packer  was  allowed  to  extend  to  money  lent  upon 
a'not^,  on  evidence  that  it  was  usual  for  packers  to  lend  money  to 
rlothiers,  and  for  the  cloths  to  be  a  pledge,  not  only  for  the  packing 
work  done,  but  for  the  loan  of  money.  It  may  appear,  that  a  lien  for  a 
general  balance,  no1  arising  from  work  done  or  expense  incurred  in  the 
coufae  of  the  trade,  but  from  matters  foreign  to  it,  might  be  established 
by  usage .  It  should,  however,  be  observed,  that  a  packer  is  considered 
to  be  in  the  nature  of  a  factor;  Green  v.  Farmer,  1  Bla.  Rep.  651.  and 
that  it  is  a  part  of  a  factor's  business  to  advance  money  to  his  ein 
ploj ' 


THE    LAW   OF  LIEN.  33 

upon  the  common  law-right  of  the  subject.  But 
in  the  former,  the  tradesman  alters  his  situation, 
by  encroaching  upon  the  right  which  every  subject 
possesses,  of  compelling  him  to  receive  goods  for 
the  purposes  of  his  trade,  without  annexing  any 
condition  for  a  general  lien,  and  which  right  the 
subject  cannot  be  presumed  to  have  given  up  but 
upon  very  strong  evidence.(c)  Accordingly,  where 
a  common  carrier  attempted  to  set  up  a  lien  for 
his  general  balance,  upon  proof  of  one  instance  of 
the  exercise  of  the  right  by  a  person  engaged  in  the 
*same  trade,  so  far  back  as  thirty  years,  accom-  *34 
panied  by  many  other  instances,  but  which  were 
either  attended  by  circumstances  which  might 
have  rendered  it  not  worth  the  parties  while, 
against  whom  they  were  exercised,  to  dispute  the 
claim,  or  had  taken  place  within  a  recent  period, 
and  were  not  brought  home  to  the  knowledge  of 
the  person  against  whom  the  lien,  in  the  present 
instance,  was  claimed.  The  jury  having  nega- 
tived the  usage  upon  this  evidence,  the  court  re- 
fused to  grant  a  new  tfm\.(d) 

But  when  a  general  lien  has  been  frequently 
proved,  and  allowed  to  exist  by  the  usage  of  any 
particular  trade,  the  courts  will  not  permit  the 
nght  to  be  afterwards  disputed.(e)  It  is  therefore, 
row  unquestionable,  that  factors,  packers,  wharf- 

(c)  Kirkman  v.  Shawcross,  6  T.  T.  14  ;  Oppenheim  v.  Russel,  3  Bos 
anA  Pul.  42. 

(d)  Rushforth  v.  Hadfield,  6  East,  519.  7  East,  224, 

(<?)  Naylor  v:  Mang-les,  1  Esp  R<=n   ino     shears  -.   Hartley,  3  Esp. 
Rep   81 


d4>  THE  LAW  OF  LIEN. 

ingers,  calico  printers,  and  in  one  place,  fullers, 
have,  by  the  custom  of  their  respective  trades,  a 
lien  upon  the  property  of  their  employers  entrusted 
to  them  in  the  course  of  their  trade,  not  only  for 
debts  arising  in  the  execution  of  the  purpose  for 
which  the  property  was  delivered,  but  for  any  gene- 
*  35  ral  balance  due  *from  their  employers  in  the  course 
of  their  trade.  It  is  likewise  clearly  established, 
that  insurance  brokers  have  a  lien  upon  all  policies, 
and  bankers  upon  all  paper  securities,  and  attornies 
upon  all  papers  in  their  possession  belonging  to 
their  employers,  for  the  general  balance  of  their 
accounts.QQ 

On  the  other  hand,  it   is  Clearly  settled,  that 

millers  and  dyers(g)  have  no  lien  for  their  general 

balance  by  the  customs  of  their  respective  trades. 

But  it  has  not  yet  been  generally  found  (though  in 

one  particular  instance  it  was  so  determined)  that 

carriers  have  no  such  lien.(/i) 

lhe      2dly.  With  respect  to  the  cases  in  which  a  gene- 

puriicu-  rai  \[en  mav  be  claimed  by  the  particular  usage  of 

of  the     the  parties.     It  is  open  to  any  person  to  establish 

his  claim  to  a  lien  for  his  general  balance,  upon 

the  ground  of  particular  usage,  or  previous  mode  of 

dealing  between  him  and  the  party  from  whom  he 

claims  it.     And  proof  of  their  having  before  deall 

upon  the  footing  of  such  a  lien  will  be  presumptive 

evidence,  that  they  continued  to  deal  upon  the 

(/)  Sec  post,  the  liens  of  those  several  characters. 

df)  Bee  post,  Liens  of  millers  mid  dyers. 

(h)  Judgment  of  Lawrence,  .1  Rushfortb  v.  Hadfield,  7  East,  23G 


THE    LAW    OF    LIENT.  *36 

game  *terms.(i)  The  circumstances  of  a  person's 
procuring  a  loan  from  another  who  is  already  in 
possession  of  some  of  the  former's  property,  as  a 
security  for  a  prior  loan,  seems  to  be  evidence  that 
the  parties  intended  that  the  property  should  be  a 
pledge  for  the  whole  debt.(A:) 

odly.  As  to  the  cases  in  which  a  general  lien  presys  e* 
may  be  acquired  by  express  agreement.  Any  J*^ 
person,  whatever  may  be  the  description  of  the 
trade  or  occupation  he  exercises,  may  acquire  a 
lien  for  his  general  balance,  by  an  agreement 
which  has  the  express  assent  of  the  customer 
from  whom  he  claims  it.  And  if  a  number  of 
tradesmen,  not  compellable  by  law  to  receive  goods 
for  the  purposes  of  their  trade,  enter  into  an  agree- 
ment among  themselves  not  to  receive  any  goods 
to  be  manufactured  in  the  course  of  their  trade, 
unless  upon  condition  that  they  shall  have  a  lien 
upon  such  goods,  not  only  for  the  debts  accruing 
from  the  work  performed  upon  those  particular 
goods,  but  also  for  any  general  balance  which  may 
be  due  to  them  for  work  of  the  same  kind  per- 
formed upon  *other  goods,  which  have  been  al-  *3" 
ready  delivered  out  of  their  possession,  such  agree- 
ment is  good  in  law,  and  obligatory  upon  any  per- 
son who,  after  notice  of  it,  delivers  goods  to  either 


(i)  Downman  v.  Matthews,  Prec.  Cha.  580.  cited  ex  parte  OckendeiK 
1  Atk.  235.   Per  Grose,  J  Kirkman  v.  Shawcross,  6  T.  R.  19. 

(k)  Demainbray  v.  Metcalf,  2  Vern.  691.  698. 


-37  iHE    LAW   OF    LIEN, 

of  these  tradesmen  for  the  execution  of  the  pur- 
poses of  his  trade  upon  them.(/) 

So  likewise  any  individual  who  exercises  a  trade, 
in  which  he  has  the  option  of  either  accepting  or  re- 
fusing employment  from  any  one  who  offers  it,  may 
by  publishing  an  express  declaration  that  he  will 
not  receive  any  property  for  the  purposes  of  his 
trade,  but  upon  condition  that  he  shall  have  a  lien 
upon  it  for  the  general  balance  of  his  account,  ac- 
quire a  right  to  such  lien  against  any  employer, 
whom  he  can  prove  to  have  had  previous  notice  of 
that  declaration.(m) 

But  in  cases  where  the  tradesman  is  from  the 
nature  of  his  trade  under  an  obligation  to  accept 
employment  at  all  events,  he  cannot,  it  seems,  im- 
pose a  condition  that  he  shall  have  a  lien  for  his 
general  balance  upon  his  customers  by  declara- 
38  tions  or  notices  of  this  nature,  or  acquire  *that 
right  by  any  agreement  which  has  not  the  express 
assent  of  the  party  against  whom  he  claims  it. 
And  therefore  it  appears,  that  neither  common  car- 
riers, inn-keepers  or  farriers,  can  claim  a  lien  for 
their  general  balances  in  consequence  of  notices 
given  by  them,  *iey  will  not  receive  goods  without 
a  general  lien.(n) 

(l)  Kirkman  -v.  Shawcross,  6  T.  R.  14.  and  see  Oppenheim  v.  RusseL, 
,  Bos.  and  Pul.  42. 
(m)  Sec  judgments  of  Lord  Kenyon,  Cli.  J.  and  Lawrence,  J.  Kirkman 
ShiiwcrnsK,  6  T.  R.  14. 
(n)  Bee  <  :isrs  filed  note(/). 


THE    LAW   OF    LIEN,  38 

4thly.  It  remains  to  be  enquired,  in  what  cases  Through 
a  general  lien  may  be  acquired  through  persons  to  to  whom 
whom  the  property  on  which  it  is  claimed,  does  perty™ 
not  belong  ;  and  it  is  clear,  that  general  as  well  as  J,1^  "ot 
particular  liens  may  be  acquired  on  property  by  as  ser- 
the  receipt  of  it  from  servants  or  agents  of  the  &c 
owner,  acting  within  the  scope  of  their  employ- 
ments.^) 


\o)  See  post,  lien  of  insurance  broker,  cases  collected  in  ltetis 


*39  THE  LAW  OF  LIE>: 


*CHAP.  IV. 

In  what  cases  liens  cannot  be  acquired.  1st.  In  ichai 
cases  no  general  lien  can  be  acquiredy  though  a 
particular  lien  may  exist ;  2d.  In  what  cases  no 
sort  of  lien  can  be  acquired. 

In  what  cases  no  general  lien  can  be  acquired,  though 
a  particular  lien  may  exist 

1.  WHERE  a  person  in  pursuance  of  the  direc- 
tions and  authority  of  the  owner  of  property,  deli- 
vers it  to  a  tradesman  for  the  execution  of  the  pur- 
poses of  his  trade  upon  it,  the  tradesman  to  whom 
it  is  so  delivered,  shall  not  have  any  lien  upon  it 
against  the  owner  for  a  general  balance  due  to  him 
from  the  person  who  delivered  it  on  the  latter's  own 
account,  if  the  tradesman  was  informed,  at  the 
time  he  received  the  property,  that  it  did  not  be- 
40      long  to  such  person.(a)    In  conformity  *to  this  rule 

(a)  Muans  v.  Henderson,  1  East,  335.  Man  v.  Sluffner,  2  East,  523. 

Snook  v.  Davidson,  2  Camp.  218.     Upon  this  principle  in  the  case  of 

Good  v.Jones,  Peake's  0.  N.  P.  176.  where  the  plaintiff  being  a  grazier 

in  the  country,  employed   a  salesman  to  sell  some  oxen  for  him  in 

Smithfield  market,    and  the   salesman  employed  the  defendant  as  his 

l)i)ok  !  ho  acted  in  that  capacity  for  several  others,  and  whose 

business  appeared  to  be  to  receive  the  money  from  the  purchaser,  and 

Co  keep  an  account  of  the  beasts  sold,  distinguishing  what  each  beast 

"lil  for,  and  to  whom  it  belonged,  and  to  pay  the  money  over  to  the 

ctivi  owners,  upon  receiving  an  order  to  that  effect  from  the 

m&n       [t  was   decided,  that   the   defendant   cowld  not  retain  the 


THE  LAW  OF  LIEN.  40 

it  has  been  decided  that  a  carrier,  who  by  the  usage 
of  his  trade  is  to  be  paid  for  the  carriage  of  goods 
by  the  consignors,  has  no  right  to  retain  them 
against  the  consignee  for  a  general  balance  due  to 
him  from  the  consignor,  for  the  carriage  of  other 
goods  of  the  same  sort  :  for  the  goods  became  the 
property  of  the  consignee  from  the  moment  of  the 
delivery  to  the  carrier,  and  therefore  could  not  be 
liable  under  any  agreement  between  the  latter  and 
a  third  person.(6)  And  if  the  owner  of  goods  con- 
signs *them  to  a  tradesman  for  the  execution  of  *41 
the  purposes  of  his  trade  upon  them,  but  before 
they  arrive  in  the  hands  of  the  tradesman  the  pro- 
perty is  transferred  by  the  owner  to  a  third  person, 
who  is  not  able  to  countermand  them,  till  after  they 
are  come  into  the  possession  of  the  tradesman,  the 
latter  cannot  retain  them  against  such  third  person, 
for  a  general  balance  due  to  him  from  the  con- 
signor, in  other  accounts  :  accordingly,  where  a 
contract  for  the  sale  of  goods  was  rescinded,  and 
the  property  retransferred  from  the  vendee  to  the 
vendor,  while  the  goods  were  in  transitu,  but  be- 
fore they  could  be  stopped  by  the  vendor,  were  de- 
livered at  a  wharf  and  received  by  the  wharfinger 
pursuant  to  an  order  which  the  vendee  had  given 

money  for  the  plaintiff's  oxen  from  him,  on  the  ground  of  a  balance  due 
from  the  salesman  to  the  defendant.  Upon  the  same  principle  too,  in 
the  case  of  Grey  v.  Cockerill,  2  Atk.  114.  it  was  determined,  that  a 
clerk  in  court  who  lends  money  to  a  solicitor  to  carry  on  a  cause,  is  not 
entitled  on  that  account  to  detain  the  client's  papers  as  a  pledge.  The 
decision  of  Lanyon  v.  Blanchard,  2  Camp.  597.  seems  to  cany  tin-. 
principle  still  further  ;  see  post,  lien  of  insurance  broker,  notis, 
(b)  Butler  v.  Woolcott.  2N,B  64 


41  THE    LAW    OF    LlEiV 

before  the  contract  was  rescinded,  and  not  coun- 
termanded ;  afterwards,  it  not  appearing  that  the 
wharfinger  had  advanced  money,  or  accepted  bills 
for  the  vendee  on  the  credit  of  the  consignment  of 
the  goods  to  him,  it  was  determined  that  he  could 
not  retain  them  against  the  vendor  for  a  general 
balance  due  to  him  from  the  vendee,  but  only  for 
the  charges  or  expenses  incident  to  those  particu- 
lar goods,  (c) 
42  *2.  No  claim  to  a  general  lien  canbe  maintained, 

where  it  would  contravene  or  interfere  with  the 
prior  common  law  right  of  another,  not  claiming 
under  the  person  from  whom  the  right  to  the  ge- 
neral lien  is  derived.  Thus  the  right  of  the  con- 
signor of  goods  to  stop  them  in  transitu  upon  the 
insolvency  of  the  consignee,  being  considered  a 
common  law  right,  and,  therefore,  paramount  to 
that  of  the  carrier  to  retain  for  his  general  balance, 
which  can  be  founded  only  on  special  custom  ;  it 
has  been  determined,  that  an  usage  for  a  carrier 
to  retain  goods  for  the  general  balance  of  account 
between  him  and  the  consignee,  cannot  in  any 
case  affect  the  consignor's  right  to  stop  the  goods 
in  transitu ;  which  the  latter  may  exercise  at  any 
time,  before  the  consignee  has  acquired  complete 
dominion  over  the  goods,  upon  paying  the  carrier 
for  the  carriage  only  of  those  particular  goods.(o) 

2.   In  what  cases  no  sort  of  lien  can  be  acquired. 

1.  In  cases  in  which  the  disability  arises  in  the 

(loss,  J  Bos.  and  Pol.  U9. 
(b)Oppenhcim  v.  Russel,  -i  Bos.  &.  Pul.  42 


THE    LAW   OF    LIEN.  42 

conduct  of  the  party  claiming  the  lien.  2.  Cases  in 
which  the  disability  arises  from  the  want  of  power  to 
dispose  of  the  property  in  which  the  lien  %s  claimed  *  43 
in  the  party  ivho  gives  possession  of  it.  3.  Where 
possession  is  not  sufficiently  given  to  the  party  claim- 
ing the  lien  of  the  property  on  which  it  is  claimed. 

Cases  in  which  the  disability  arises  in  the  conduct 
of  the  party  claiming  the  lien. 

1.  The  law  will  not  suffer  a  lien  to  be  acquired 
in  any  case  by  the  wrongful  act  of  the  party  claim- 
ing it.  And,  therefore,  where  one  person  pays  the 
freight  or  other  charges  of  goods  belonging  to  ano- 
ther, in  order  to  obtain  wrongful  possession  of 
them,  he  cannot  detain  them  against  the  right 
owner  till  he  is  indemnified  for  those  expenses. (e) 

2.  No  lien  can  be  acquired  by  the  misrepresenta- 
tion of  the  party  claiming  it,  and  if  any  one  ob- 
tains possession  of  another's  property  by  such 
means,  he  cannot  retain  it  against  the  owner,  al- 
though under  the  circumstances,  he  would  have 
had  a  lien  upon  it,  if  he  had  gained  the  possession 
of  it  fairly.(/)  But  though  a  lien  cannot  be  crea- 
ted in  the  first  instance  by  misrepresentation,  yet 
having  been  once  fairly  acquired,  and  lost  by  the 
possession  *being  afterwards  relinquished,  it  may,  *u 
under  some  circumstances,  be  revived  by  regain- 
ing possession  of  the  property  on  which  it  existed, 

even  under  a  false  pretence.(g) 

(«)  Len-priere  v.  Pasley,  2  T.  R.  485. 

(/)  Madden  v.  Kempster,  1  Campb.  12 

(?)  Whitehead  v.  Vaughan,  Cooke's  B.  L.  SG6. 


44  THE    LAW   OF    LIEN. 

S.  A  lien  cannot  be  acquired  by  the  voluntary 
and  unauthorized  act  of  the  party  claiming  it. 
And,  therefore,  if  a  man,  having  the  goods  of  ano- 
ther in  his  possession,  voluntarily,  and  without  any 
authority  from  the  owner  for  so  doing,  defrays  any 
charges,  or  is  at  any  expense  or  trouble  concerning 
them,  he  cannot  on  that  account  retain  them 
45      against  the  owner.(/i)     And  this  *rule  holds,  (ex- 

W(h)  Stone  v.Lingwood,  1  Str.  651.  The  facts  of  this  case  were  these 
the  plaintiff,  being  the  master  of  a  ship,  had  brought  home  a  small 
quantity  of  elephants'  teeth  on  his  own  account,  and  a  large  parcel  on 
the  account  of  the  defendant,  who  was  the  owner  of  the  ship.  The  de- 
fendant entered  both  parcels  at  the  custom-house,  and  paid  the  duty 
for  them  both,  and  both  were  delivered  to  him.  Upon  his  refusing  to 
deliver  to  the  plaintiff  his  parcel,  an  action  of  trover  was  brought  by 
the  latter;  and  the  question  was,  whether  the  plaintiff,  having  neither 
paid  nor  tendered  his  part  of  the  duty,  could  support  the  action  ?  And 
it  was  ruled  he  could  And  by  Eyre,  Ch.  J,  the  defendant  bad  no  right 
to  detain  the  plaintiff's  parcel,  notwithstanding  the  money  paid  by  him 
as  a  duty  for  it,  was  neither  paid  nor  tendered  to  him,  because  he  might 
have  brought  an  action  for  the  money,  or  then  have  given  evidence  of 
the  money  paid,  when  it  mig-lit  have  been  deducted  out  of  the  plaintiff's 
damages.  And  the  reporter  adds,  that  the  latter  was  done.  Both  the 
reasons  assigned  here  by  Chief  Justice  Eyre,  as  the  ground  of  the  deci- 
sion are  clearly  insufficient,  for  it  is  unquestionable  that  alien  exists  in 
many  casts,  where  an  action  might  be  maintained  for  the  same  debt. 
A  carrier,  who  has  undoubtedly  a  right  to  detain  goods,  unless  the 
money  due  for  the  carriage  of  them  is  paid  or  tendered,  may  waive 
this  right,  and  bring  an  action  for  the  money.  And  if  an  action  of  tro- 
ver hi  brought  against  him  for  refusing  to  deliver  the  goods,  the  mo- 
ney dm  -for  1  lie-  carriage  of  them  may  be  deducted  out  of  the  plaintiff's 
damages.  Tn  the  argument  of  Green  v.  Farmer,  4  Burr.  2218.  lord 
Mansfield  lie  decision  itself  not  to  be  law.     Hut  though  the 

ons   alleged  as  its  foundation  are  clearly  insufficient,  the  decision 
itself  dors  n. >t  appear  to  have  been  questioned  in  any  other  instance; 
and  in  principle  il  appeal's  to  be  strongly  supported  by  the  rules  laid 
down  in  the  Lat<  decisions  of  Exall  v.  Partridge,' 8  T.  R.  310.  and  Child 
M  irl<  y,  8T.  It.  610.  with  regard  to  voluntary  payments,  in  which  it  il 


THE  LAW  OF  LIEN.  45 

cept  in  cases  where  the  property  is  saved  from 
loss  at  sea,  though  the  possession  ot  the  pro- 
perty be  taken,  and  the  trouble  or  expense  incurred 
about  it,  for  the  purpose  of  preserving  it  for  the 
owner,  where  it  has  been  lost  by  him.  Thus 
where  in  trover  for  a  dog,  the  defendant  justified 
the  detaining  him  on  the  *ground  that  the  dog  had  *46 
strayed  casually  to  his  house,  and  he  had  kept  him 
there  for  the  space  of  twenty  weeks,  and  demand- 
ed the  expense  of  his  keep ;  on  a  case  made  whe- 
ther the  refusal  to  deliver  up  the  dog  amounted  to 
a  conversion  of  it,  the  defendant's  counsel  de- 
clined arguing  the  question,  and  the  plaintiff  re- 
covered.^") 

And  where  a  quantity  of  timber  which  had  been 
placed  in  a  dock  on  the  river  Thames,  and  the 
ropes  by  which  it  was  confined,  had  loosened ;  in 
consequence  of  which  it  floated  down  the  river, 
and  was  left  by  the  tide  in  the  towing  path,  where 
it  was  found  by  the  defendant,  and  conveyed  by 
him  to  a  place  of  safety  for  the  owner.  It  was 
adjudged,  that  the  defendant  could  claim  no  lien 
on  the  timber  for  the  expenses  incurred  in  remo- 
ving and  taking  care  of  it,  but  was  bound  to  deli- 
ver it  to  the  owner.(A') 


frilly  admitted  that  no  action  can  be  maintained  for  money  paid  on  be- 
half of  another,  voluntarily  and  without  his  authority. 

(t)  Binstead  v.  Buck,  2  Bla.  R.  1117. 

(k)  Nicholson  v.  Chapman,  2  H.  Blu.  254.  But  it  seems  to  have  been 
the  opinion  of  the  eourt,  that  the  expenses  might  have  been  recovered 
by  action,  which  (if  any  could  have  been  maintained)  must  have  been 
^nmnsit- 


46  THE  LAW  OF  LIEN. 

And  this  rule  holds,  too,  though  the  property  be 
taken  possession  of  under  legal  process,  and  the 
■47  expense  incurred  be  *necessary  to  the  preservation 
of  it.  Thus  if  a  horse  be  distrained  to  compel  an 
appearance  in  a  hundred  court,  after  the  appear- 
ance the  person  who  took  the  horse  cannot  justify 
detaining  it,  until  he  is  paid  for  its  keep.(Z) 

4.  No  lien  can  be  acquired,  where  the  party 

claiming  it  has  entered  into  a  special  agreement, 

which  shows  that  he  relied  only  on  the  personal 

48      credit  of  his  employer  \(m)  ^whether  the  lien  to 

(0  Lenton  v.  Cook,  H.  9  Geo.  2-  Bui.  N.  P.  45. 

(m)  Y.  B.  5  Ed.  4.  fol.  2.  17  Ed.  4.  fol.  1.  2  Rol.  Abr.  92.  (m)  pi.  2. 
6  Yelv.  66.  Collins  v.  Ongley,  cited  Brennan  v.  Currint,  Selw.  N.  I\ 
1289.  Saver,  It.  224.  Bui.  N.  P.  45.  S.  C.  Weymouth  v.  Boyer,  5  Ves. 
jun.  416.  and  see  Yorke  v.  Greenaugh,  2  Ld.  Raym.  867.  Bac.  Abr. 
Trover,  p.  696.  Upon  the  same  principle  hi  equity  the  circumstance 
cf  another  security  having  been  taken  and  relied  on  by  the  vendor  of  a 
real  estate,  may  be  evidence  of  his  having  relinquished  his  lien  upoi. 
the  estate  sold.  Mackreth  v.  Symons,  15  Ves.  jun.  329.  And  where  a 
specific  chattel  is  deposited  with  a  person  upon  a  special  trust,  and 
under  an  express  agreement  by  the  depositary  to  restore  it  after  the 
expiration  of  a  limited  period,  and  where  from  its  nature  no  adequate 
compensation  can  be  obtained  for  it  in  damages,  and  an  action  at  lav. 
Would  be  ineffectual,  a  court  of  equity  will  compel  the  depositary  t« 
deliver  it  up  in  specie  after  the  expiration  of  the  trust.  Fells  v.  Read, 
3  Ves.  jun  70.  In  Cowell  v.  Simpson,  16  Ves.  jun.  279.  Lord  Eldon 
states  it  to  be  his  opinion,  that  the  true  principle  upon  which  the  law 
considers  the  taking  a  security,  as  a  waiver  of  the  lien  is  not  regulated 
by  the  usage  of  trade,  nor  consists  in  the  mere  rule  of  law,  that  the 
special  contract  determines  the  implied  one  ;  but  in  the  inconvenience 
wi.ich  would  result,  (the  necessities  of  mankind  requiring  that  the. 
goods  should  be  delivered  for  consumption,)  from  the  extension  of  the 
lien  for  the  whole  period  which  the  security  has  to  run.  For  it  must 
be  presumed,  cither  thai  the  lien  is  to  continue  and  accompany  the  sc 
enrity  until  payment,  or  thai  i1  is  relinquished  by  the  substitution  of 
the  securitv 


THE    LAW    OF    Lit N.  iO 

which  he  would  otherwise  have  been  entitled 
would  have  arisen  by  the  common  law  or  by  the 
usage  of  trade.  Thus  if  a  person,  who  from  the 
nature  of  his  employment,  has  a  lien  by  the  com- 
mon law  upon  property  coming  into  his  possession 
in  the  course,  of  his  trade  for  the  labour  or  expense 
incurred  in  respect  of  that  particular  property,  con- 
tracts for  a  specific  or  a  reasonable  sum  to  be  paid 
him  as  a  remuneration  for  such  trouble  or  ex- 
pense, he  thereby  waives  the  benefit  of  his  lien. 
Where  an  agreement  was  entered  into,  whereby  the 
sum  of  ten  shillings  and  six-pence  was  to  be  paid 
to  a  farrier  for  curing  a  mare,  and  also  a  reasonable 
reward  for  keeping  the  mare  until  she  should  be 
cured  ;  and  the  owner  of  the  mare,  as  soon  as  she 
was  cured,  tendered  the  ten  shillings  and  six-pence 
and  demanded  *the  mare  :  but  the  farrier  refusing  *  49 
to  deliver  it,  an  action  of  trover  was  brought ;  and 
it  was  adjudged  by  the  court,  that  the  action  lay  1 
and  by  Ryder,  Ch.  J.  "  it  is  not  necessary  to  give 
any  opinion  as  to  the  right  of  a  farrier  to  detain  a 
beast  for  the  money  due  for  keeping  it  until  it  is 
cured  ;  because,  if  a  farrier  have  in  general  such 
right,  it  was  in  the  present  case  waived  by  the  spe- 
cial agreement  to  be  paid  a  reasonable  sum  foi 
the  keeping."(?i) 

And  where  the  law  would  otherwise  imply  a 
lien  from  the  general  usage  of  trade,  the  parties 
may,  by  a  special  agreement,  which  shows  that  the 
property  was  not  intended  to  be  a  pledge,  prevent 

(n)  Brennan  v.  Ourrint,  Saver's  It.  224.   Selw.  N.  P   1289. 


49  THE  LAW  OF  LIEtf , 

the  application  of  the  general  rule  of  law  to  their 
case.  Accordingly,  where  goods  were  deposited 
with  a  factor  under  a  special  contract,  by  the  terms 
of  which  it  appeared  that  the  deposit  was  made  for 
the  special  purpose  of  sale,  and  that  the  factor  pro- 
mised to  pay  over  the  proceeds  to  his  employer  : 
it  was  determined,  that  the  factor  could  not  retain 
the  goods  if  not  sold,  for  the  general  balance  of  his 
account  arising  upon  other  articles  ;  because  the 
50  *terms  of  the  contract  precluded  the  supposition 
upon  which  this  sort  of  lien  is  founded,  that  the 
goods  were  deposited  in  the  nature  of  a  pledge. (0) 

So  too,  where  the  plaintiffs  being  insurance  bro- 
kers, and  indebted  to  the  defendant  for  effecting  an 
insurance  for  them,  upon  his  offering  to  get  some 
bids  discounted  for  them  for  a  certain  commission, 
entrusted  a  bill  to  him  for  that  purpose,  which  he 
retained  for  the  debt.  It  was  determined,  that  an 
action  of  assumpsit,  or  case,  with  a  count  in  trover, 
might  be  maintained  against  him  for  it.(p) 

2dly.  Cases  in  which  the  disability  arises  from  the 
want  of  power  to  dispose  of  the  property  on  which  the 
lien  is  claimed  in  the  party  who  gives  possession  of  it. 

1.  Though  liens  may  be  derived  through  the 
acts  of  servants  or  agents  acting  within  the  scope 
of  their  employments/^  and  though  wherever  the 
person  who  delivers  the  possession  of  the  property 
on  which  the  lien  is  claimed  to  the  person  claiming 
it,  is  invested  with  authority  to  dispose  of  the  pro- 

o)  Walker  v.  Rirch,  G  T.  R  258. 
(j>)  Judin  v   Samuel,  1  N.  It.  -ij 
(>})  Sec  ante,  p.  ii8.  J8. 


THE   LAW   OF    LIEN.  *51 

perty  in  that  way,  the  latter  shall  *not  be  defeated 
of  the  lien  to  which  he  is  entitled  for  the  trouble  or 
expense  incurred  about  that  particular  property  by 
the  owner  coming  forward  and  claiming  it(r) 
Where  the  act  of  the  servant,  agent,  or  other  per- 
son in  delivering  the  property  is  wholly  unautho- 
rized, and  the  pledge  of  it  tortious  against  the 
owner,  whether  the  property  be  delivered  to  a 
tradesman  for  (he  execution  of  the  purposes  of  his 
trade  upon  it,  or  whether  it  be  deposited  for  bare 
custody  as  a  security  for  a  loan  made  upon  it,  no 
lien  can  be  acquired  upon  it  by  any  such  delivery; 
and  the  owner  may  recover  it  by  action  of  trover 
from  the  person  to  whom  it  is  delivered,  without 
tendering  him  any  satisfaction  for  money  raised 
upon  the  credit  of  the  deposit  of  it,  or  even  for 
trouble  or  expense  incurred  upon  and  for  the  bene- 
fit of  that  property.(s)  Accordingly  where  a  ser- 
vant having  by  negligence  broken  his  master's 
chaise,  and  without  his  orders  or  knowledge  deli- 
vered it  to  a  coach-maker,  who  had  never  before 
been  employed  by  his  master  for  the  purpose  of 
repairing  *it,  and  the  coach-maker  refused  to  deli-  *52 
ver  it  up  until  he  was  paid  for  the  repairs,  and  an 
action  of  trover  being  brought  for  it  by  the  master, 
contended  as  a  defence,  that  he  had  a  lien  on  the 
chaise  for  the  repairs  done  to  it :  Lord  Ellenbo- 
rough  said  that  he  had  no  right  to  hold  the  chaise 

(r)  Hammond  v.  Barclay,   2  East,  22T-    Richardson  v,  Goss,  3  Boi 
and  Pul.  119.   Weldon  v.  Gould,  3  Esp.  R.  268 
(»)  See  post,  lien  of  pawnee. 


62  1HE  LAW  OF  LIEN. 

as  a  fien.  Whatever  claim  of  that  sort  he  might 
have,  he  must  derive  it  from  legitimate  authority. 
That  unless  the  master  had  been  in  the  habit  of 
employing  the  tradesman  in  the  way  of  his  trade, 
it  should  not  be  in  the  power  of  the  servant  to  bind 
him  to  contracts  of  which  he  had  no  knowledge,  or 
to  which  he  gave  not  his  assent.  It  was  the  duty 
of  the  tradesmen  when  he  was  employed,  to  have 
enquired  of  the  principal,  if  the  order  was  given  by 
his  authority  ;  but  having  neglected  to  do  so  here, 
and  the  master  having  never  employed  him,  the 
master  was  not  liable  to  the  demand  ;  and  the  de- 
tainer of  the  chaise  was  unlawful.  A  verdict  was 
accordingly  found  for  the  plaintifT.(7J 

So  too,  where  a  factor  pledged  the  goods  of  his 
principal :  it  was  determined,  that  a  factor  having 
only  authority  to  sell  the  goods  of  his  principal, 
and  not  to  pledge  them,  the  principal  might  reco- 
53  ver  them  *from  the  pawnee  without  making  any 
tender  to  him  of  the  money  advanced  upon  the 
pledge.(w) 

2.  No  lien  can  be  acquired  by  a  creditor  upon 
the  property  of  a  trader,  whether  in  possession  or 
action  which  is  delivered  by  the  trader  to  the  cre- 
ditor, with  intent  to  give  him  a  preference  in  the 
event  of  the  bankruptcy  of  the  trader :  all  disposi- 
tions of  property  made  with  such  an  intent  being 
void  at  law,  on  the  ground  of  their  being  fraudu- 
lent, and  tending  to  defeat  the  object  of  the  bank- 
er) lliscox  v.  Greenwood,  4  Esp.  It.  174. 
DauMgnyu  Duval,  5  T.  It.  604. 


THE    LAW   OF  LIEN,  bo 

rupt  laws.(v)  But  whether  the  delivery  of  the 
property  is  void,  from  being  made  with  intent  to 
give  the  creditor  a  preference  in  the  event  of  a 
bankruptcy,  or  valid,  from  not  being  made  with 
that  intent,  must  be  determined  by  the  particular 
circumstances  of  each  case.(i/;)  There  are,  how- 
ever, certain  circumstances  attending  the  transac- 
tion, which  have  been  by  repeated  decisions,  set- 
tled and  determined  to  be,  either  conclusive  or 
presumptive  evidence  of  the  *fraud  or  fairness  of  *  ,54. 
it.  But  as  the  law  upon  this  point  is  increased  to 
a  very  considerable  bulk  by  the  number  of  deci- 
sions and  nice  distinctions  made  upon  it,  I  shall 
only  give  a  very  brief  statement  of  the  result  of 
these  decisions ,(.r)  referring  the  reader  who  wishes 
to  be  better  informed  upon  the  subject,  to  the  se- 
veral treatises  upon  the  bankrupt  laws,  where  it  is 
more  fully  considered,  and  to  which  it  more  pro- 
perly belongs. 

Any  disposition  or  delivery  by  a  trader  of  the    concii* 
who\e,(y)  or  of  so  much  of  his  property  as  will  alncerf 


fraud. 


(r)  Alderson  v.  Temple,  4  Burr  2239.  Ex  parte  Schudamore,  3  Ves. 
jun.  85.  Wilson  v.  Balfour,  2  Campb.  579.  Crosby  v.  Crouch,  2Campb. 
166.    11  East,  256.  S.  C 

(w)  Burr.  2477. 

(x)  Though  most  of  the  cases  which  will  be  cited  upon  this  subject 
.are  cases  only  of  fraudulent  assignments,  without  actual  delivery  of 
the  property,  the  principle,  of  them  applies  as  well  to  cases  of  fraudu- 
lent delivery. 

(y)  Small  v.  Oudley,  2  P.  Wms.  427.  Worseley  v.  Demattos,  Burr 
467.  Wilson  v.  Day,  Burr.  827.  Kettle  v.  Hammond,  Co.  B.  L.  89 
Devon  v.  Watts,  Doug.  86.  Hassclls  v.  Simpson,  Doug.  SS.  Butche: 
v.  Easto,  Doug.  282.  Thornton  v  Hargrave,  7  Bast,  544;  and  se< 
Montague,  B  L.  58.  n.  (I). 


54  THE  LAW  OF  LIEN. 

disable  him  from  carrying  on  trade/ z)  unless  made 

*  55      with  the  consent  *of  every  creditor,(«)  is  conclu- 

sively fraudulent  upon  the  face  of*it ;  though  it  be 
made  as  a  security  for  future  advances/6J  or  a 
debt  previously  incurred/ c,)  or  under  fear  of  legal 

*  56      process,  or  even  under  actual  *arrest/d)  or  though 

the  creditor  is  in  full  credit  at  the  time  the  dispo- 
sition or  delivery  of  the  property  is  made/ej 

(z)  Small  v.  Oudley,  2  P.  Wins.  427.  Ex  parte  Foord,  Burr.  477. 
Conipton  v.  Bedford,  1  Bla.  R.  362.  Hooper  v.  Smith,  1  Bla.  R.  441. 
Alderson  v.  Temple,  4  Burr.  2235.  Law  v  Skinner,  2  Bla.  R.  996. 
Harman  v.  Fishar,  Cowp.  117-  Rust  v.  Cooper,  Cowp.  629  ;  and  see 
Montague,  B.  L.  63.  n   (t). 

(a)  Kettle  v.  Hammond,  Co.  B.  L.  89.  Alderson  v,  Temple,  Burr 
2235.  Harman  v.  Fishar,  Cowp.  117  Camford  v.  Baron,  2  T.  R.  494. 
Eckardt  v.  Wilson,  8  T  R.  140 ;  and  see  Dixon  v.  Baldwin,  5  East, 
175  ;  and  Montague,  B.  L.  62.  n.  (r). 

(b)  YVorseley  v.  Demattos,  Burr.  467. 

(c)  Butcher  v.  Easto,  Doug.  282  In  Whitwell  v.  Thompson,  1  Esp 
II.  68.  it  was  said  by  Lord  Kenyon,  that  "  all  the  cases,  without  a  sin- 
gle exception,  where  the  assignment  of  his  property  by  a  trader  had 
been  deemed  fraudulent  and  an  act  of  bankruptcy,  had  been  where  it 
had  been  given  for  a  by-gone  and  before  contracted  debt.  But  that  it 
never  could  be  taken  to  be  law,  that  a  trader  could  not  sell  his  pro- 
perly when  Iiis  affairs  became  embarrassed,  or  assign  them  to  a  person 
who  would  assist  him  in  li is  difficulties,  as  a  security  for  any  advances 
such  person  might  make  to  him."  This  position,  however,  can  onl; 
be  considered  as  law  under  this  restriction,  that  the  property  sold  or 
assigned  by  the  trader  do  not  amount  to  so  much  as  will  disable  hira 
from  carrying  on  trade.  For  according  to  the  general  principle  which 
seems  to  be  established  by  the  cases,  the  only  view  with  which  a  tra- 
der can  dispose  of  any  of  his  property  on  the  eve  of  bankruptcy  is,  that 
he  may  be  relieved  by  such  disposal  from  present  pressure,  and  enabled 
to  carry  on  trade  for  a  longer  period  than  he  otherwise  could. 

(d)  Butcher  v.  Easto,  Doug.  282.    Newton  v.  Chantler,  7  East,  13P 
(<•)  Hassell  v.  Simpson,  Doug,  88. 


THE  LAW  OF  LIEN.  56 

But  the  circumstance  of  the  disposition  or  deli-  Pres^p- 

1  tive    evi- 

hvery  of  part  of  his  effects  being  made  voluntarily,  dence  of 
and  without  the  application  of  the  creditor,(/)  or 
on  the  eve  of  bankruptcy  ,(#)  will  be  only  pre-      *  57 
sumptive  evidence  of  fraud. 

And  if  the  trader  is  induced  to  give  the  secu-    conciu- 
rity  of  such  a  part  of  his  effects,  as  will  not  alto-  dJnce^o'f 
gether  disable  him  from  carrying  on  trade  by  the  faixnws 
compulsion  or  even  application  of  the  creditor,(/t) 
(provided  such  application  be  not  collusive(i)  nor 
in  consequence  of  information  officiously  and  spon- 
taneously given  by  the  trader  to  the  creditor  of  the 
former's  insolvency ,)(&)  or  in  consequence  of  a 

(/)  Jacob  v.  Shepherd,  Burr.  478.  Alderson  v.  Temple,  Burr.  2235, 
Harman  v.  Fisher,  Cowp.  117.  Rust  v.  Coop,  Cowp.  629.  Devon  v. 
Watts,  Doug1.  86.  Hassell  v.  Simpson,  Co.  B.  L.  88.  Thompson  v, 
Freeman,  1  T.  R  155.  Cosser  v.  Gough,  cited  Montagu,  B.  L.  72.  n. 
(z)  Smith  v.  Payne,  6  T.  R.  152.  Ex  parte  Scudamore,  3  Ves.  jun.  85. 
Singleton  v.  Butler,  2  Bos.  &  Pul.  283.  Hartshorn  v.  Slodden,  2  Bos.  & 
Pul.  582.  That  the  circumstance  of  the  assignment  being  voluntary  is 
evidence  of  its  being  fraudulent  is  clear  from  all  these  cases.  But  that 
it  is  only  presumptive  evidence  of  fraud  is  equally  clear  from  the  same 
eases,  as  well  as  from  that  of  Cock  v.  Goodfellow,  10  Mod.  489.  and  the 
late  decision  of  Crosby  v.  Crouch,  11  East,  256.  2Campb.  166.  S.  C. 
which  confirms  the  decision  of  Hartshorn  v.  Slodden,  and  in  which  Lord 
Ellenborough,  Ch.  J  says :  "  Two  things  are  necessary  to  concur  in  order 
to  avoid  the  delivery  of  the  goods,  namely,  the  purpose  of  voluntary  pre- 
ference in  respect  to  such  delivery,  and  the  contemplation  of  the  bunk- 
ruptcy,  at  the  time  when  the  goods  were  delivered." 

(g)  See  cases  cited  in  note  (/) 

(/i)  See  cases  cited  in  note  (/)  and  Butcher  v.  Easto,  Doug.  282. 

(*)  Per  Ld.  Mansfield,  Alderson  v.  Temple,  Burr.  2285. 

He)  Singleton  v  Butler,  2  Bos.  &  Pul.  283 

8 


57  THE    LAW    OF    LIEN. 

well,(Z)  or  even  an  i\\(m)  grounded  fear  of  legal 
process,  though  the  application  by  the  creditor  is 
to  give  further  security  for  a  debt  secured  on  an  in- 
strument not  payable  until  a  future  day,(/i)  and 
*58  though  previous  to  the  making  *of  the  application 
the  trader  had  an  intention  to  give  a  fraudulent 
preference  to  the  creditor  by  a  delivery  of  the  pro- 
perty to  him,  but  which  intention  was  not  carried 
into  effect  until  after  an  actual  application  was 
made  by  the  latter,(o)  or  though  the  property  be 
delivered  secretly ,(p)  or  though  the  trader  him- 
self,^) or  the  creditor  also,(rJ  know  at  the  time 
the  application  is  made,  that  the  failure  of  the  for- 
mer is  inevitable,  the  transaction  will  not  be  consi- 
dered fraudulent. 
Pres-        J3ut  t}ie   circumstances  of  the  delivery  of  the 

umptive  ^ 

evidence  property  being  for  a  full  and  valuable  considera- 
ness.      tion  ;(s)  or,  as  it  seems,  of  the  trader's  solvency  at 

(/)  Jacob  v.  Shepherd,  Burr.  478.  Alderson  v.  Temple,  Burr.  2235. 
Harman  v.  Fishar,  Cowp.  117.  Rust  v.  Cooper,  Coup.  629.  Smith  v. 
Payne,  6  T.  R.  152. 

(?»)  Thompson  v.  Freeman,  1  T.  R.  155. 

(?i)  Singleton  v.  Butler,  2  Bos.  &  Pul.  283.  Hartshorn  v.  Slodden,  2 
Bos.  and  Pul.  583.  Thompson  v.  Freeman,  1  T.  R.  155.  Crosby  v. 
Crouch,  11  East,  256.     2  Campb.  166.  S.  C. 

(o)  Bayley  v  Ballard,  1  Campb.  416. 

(/»)  Crosby  v.  Crouch,  11  East,  256.     2  Campb.  166.  S.  C 

(*/)  Rust  v.  Cooper,  Cowp.  929.  Thompson  v.  Freeman,  1  T.  R.  155 
Hartsbom  v.  Slodden,  2  Bos.  &  Pul.  582.  Crosby  v.  Crouch,  11  East. 
256.     2  Camp.  166.  S.  C. 

(r)Yeates  v.  Grove,  l  Ves.jun.  280.  Hartshorn  v.  Slodden,  2  Bos. 
h  Pul.  582.  and  sec  Crosby  v.  Crouch,  11  East,  256  2  Campb.  166. 
S.  C. 

3ee  Cadogan  v.  Kcnnctt.  Cowp,  434.  and  Worscley  v.  Demattos, 
Burr   1f>7 


THE    LAW    OF    LIEN.  58 

the  time  it  is  effected,^)  or  its  being  effected  in 
pursuance  *of  a  prior  fair  agreement  ;(t>)  or  being      *59 
beneficial  to  the  creditors  at  large,(w)  are  only  pre- 
sumptive evidences  of  the  fairness  of  the  transac- 
tion. 

3.  According  to  the  original  rule  of  relation 
which  prevailed  in  the  bankrupt  laws,  no  lien 
could  be  acquired  upon  the  property  of  a  trader, 
after  he  had  committed  an  act  of  bankruptcy ;  the 
legal  effect  of  such  act  being  to  deprive  the  bank- 
rupt of  all  power  of  charging  or  disposing  of  his 
property,  and  to  avoid  all  subsequent  transactions 
by  him  with  respect  to  it  without  regard  to  the 
fairness  or  fraud  of  them.(w)  The  rigour  of  this 
rule  has,  however,  been  relaxed  by  the  legislature 
by  *four  different  statutes.  By  1  Jac.  1.  c.  15.  s.  *60 
14.  it  has  provided,  that  the  relation  to  the  act  of 
bankruptcy  shall  not  extend  to  the  prejudice  of  any 
debtor  who  paid  his  debt  to  the  bankrupt  truly  and 

(t)  That  it  is  evidence  of  fairness,  see  observatious  of  Ld.  Mansfield 
upon  Cock  v.  Goodfellow,  10  Mod.  489.  in  the  case  of  Worseley  v.  De- 
mattos,  Burr.  478.  but  that,  it  seems  to  be  only  presumptive  evidence. 
See  Hassel  v.  Simpson,  Doug.  88. 

(v)  Small  v  Oudley,  2  Peere  Wms.  427.  The  law  of  this  case  is 
rather  doubtful.  See  diet.  Ld.  Mansfield,  Harman  v.  Fishar,  Cowp.  117. 
ace.  Singleton  v.  Butler,  2  Bos.  &  Pul.  283.  contr. 

(w)  Small  v.  Oudley,  2  Peere  Wins.  427.  Per  Grose,  J.  Manton  v. 
Moore,  7  T.  R.  67. 

(w)  Ex  parte  Bush,  7  Vin.  74.  Billon  v.  Hyde,  1  Ves.  jun.  326.  Fal- 
kener  v.  Case,  2  T.  R.  491.  Copland  v.  Stein,  8  T.  R.  199.  Tamplin  v. 
Biggins,  2  Camp.  312.  Per  Buller,  J.  Vernon  v.  Hankey,  2  T.  R.  113. 
and  Buckley  v,  Taylor,  2  T.  R.  600.  2  Bla.  Com.  485.  And  where  the 
act  of  bankruptcy  consisted  in  lying  two  months  in  prison,  all  acts  sub 
sequent  to  the  first  arrest  were  void     Ex  parte  Lee,  2  Ves.  jun.  285 


5©  THE    LAW    OP    LIEN. 

bona  fide  before  he  understood  or  knew  that  he 
had  become  a  bankrupt.  And  by  21  Jac.  1.  c.  19. 
9.  14.  not  to  purchasers  for  a  valuable  considera- 
tion, unless,  in  the  case  of  such  purchasers,  the 
commission  be  sued  out  within  five  years  after  the 
bankruptcy.  And  by  19  Geo.  2.  c.  32.  s.  1.  not 
to  payment  for  goods  or  bills  of  exchange  bona 
fide  made  by  the  bankrupt  in  the  usual  course  of 
trade  to  a  creditor  who  has  no  notice  of  the  bank- 
ruptcy or  insolvency. 

An  advance  of  money,  or  an  acceptance  of  bills 
by  a  factor  on  the  credit  of  a  consignment  of 
goods  made  to  him  by  his  principal,  (the  money 
advanced  being  more  than  the  actual  but  less  than 
the  supposed  value  of  the  goods,)  is  not  a  case 
that  can  be  brought  within  the  first  of  these  sta- 
tutes, as  a  payment  for  goods  sold  and  obviously 
not  within  the  second  or  third:  and  therefore, 
where  a  factor  agreed  to  advance  a  sum  of  money, 
in  consideration  of  a  consignment  of  goods  to  be 
made  to  him  for  sale  on  account  of  the  owner,  and 
accordingly,  on  the  consignment  being  made,  ad- 
gj  vanced  money,  and  accepted  bills  in  ^favour  of 
the  consignor,  and  it  was  afterwards  found  that  the 
latter  had  committed  a  secret  act  of  bankruptcy 
prev  ious  to  the  transaction,  and  a  commission  was 
issued  against  him,  after  which  the  factor  sold  the 
goods  and  received  the  money ,  it  was  decided, 
that  he  was  answerable  to  the  assignees  of  the 
bankrupt  for  the  value  of  the  goods.f  x) 

,  Copland  v.  Stcitj,  8  T.  R.  199 


THE    LAW    OF    LIEN.  61 

But  the  last  and  most  extensive  relaxation  of 
the  rule  of  relation  to  the  act  of  bankruptcy  was 
made  by  46  Geo.  3.  c.  135.  s.  1.  by  which  all  con- 
veyances by,  all  payments  by  and  to,  and  all  con- 
tracts and  other  dealings  and  transactions  by,  and 
with  any  bankrupt  bona  fide  made  and  entered  into 
more  than  two  calendar  months  before  the  date  of 
the  commission,  are  rendered  valid  and  effectual, 
notwithstanding  any  secret  act  of  bankruptcy  pre- 
viously committed. 

However  under  the  original  rule  of  relation  in 
all  its  rigour,  and  in  cases  to  which  none  of  these 
statutes  extend,  where  as  complete  a  possession  of 
the  property  has  been  given  as  the  situation  or  na- 
ture of  it  would  admit,  and  not  with  a  view  to  a 
frandulent  preference  before  the  commission  of  an 
act  of  bankruptcy  *by  the  owner,  a  lien  may  be  *  (52 
acquired  upon  it,  though  the  full  and  perfect  pos- 
session is  not  obtained  until  after  that  act  has 
taken  place.  Such  are  the  cases  of  property  at 
sea,  and  choses  in  action,  in  which  the  delivery  of 
the  muniments  or  documents  of  the  right  of  pro- 
perty are  deemed  sufficient  in  law  to  create  a 
Xien.(y) 


(?/)  Many  of  the  cases  which  will  be  cited  upon  this  subject  are  more 
properly  cases  of  mortgages,  or  liens  in  equity,  where  the  general  pro- 
perty is  transferred  at  law  conditionally,  than  of  pawns  or  legal  liens, 
by  which  only  a  special  property  is  acquired  by  the  pawnee,  the  gene- 
ral property  still  remaining  in  the  pawnor.  But  they  equally  serve  to 
show  the  general  principle.  See  Cull  en,  p.  S02  to  310.  Cooke,  B.  L. 
chap.  8.  sect.  11.    Montague,  p.  69.  302. 341.  350, 


62  THE    LAW    OF    LIEN. 

property  Thus,  where  a  cargo  at  sea  was  made  a  collate- 
ral security  for  the  payment  of  a  bond,  the  deliver) 
of  the  invoice  and  the  bills  of  lading,  and  of  seve- 
ral indorsed  policies  of  insurance  on  the  goods, 
was  held  sufficient  to  give  the  creditor  a  lien  on 
the  cargo,  when  actual  possession  could  not  be 
taken  before  the  bankruptcy  of  the  dcbtor.(z) 

And  where  a  policy  of  insurance  on  goods  at  sea, 
and  letters  of  advice  have  been  delivered  before  an 
act  of  bankruptcy,  as  a  security  for  money  advanc- 

*63  ed  to  a  *trader,  together  with  an  undertaking  by 
him  to  endorse  the  bill  of  lading  to  the  lender  im- 
mediately upon  its  arrival.  If  the  bill  of  lading  be 
endorsed,  and  possession  of  the  goods  taken  by  the 
endorsee,  immediately  upon  their  arrival,  though 
not  until  after  the  bankruptcy  of  the  trader,  the 
former  will  have  a  lien  upon  them  against  the 
assignees. («) 

chosesin      If  a  policy  broker,  to  whom  a  trader  is  indebted 

)  before   his  bankruptcy  for  premiums,   be  at  the 

time  of  the  trader's  bankruptcy  in  possession  of  a 

(z)  Brown  v.  Heathcote,  1  Atk.  160. 

(a)  Lempriere  v.  Pasley,  2  T.  R.  485.  as  between  a  person  who  has 
an  equitable  lien  and  a  third  person  who  purchases  the  thing'  for  a  va- 
luable consideration  and  without  notice,  the  prior  equitable  lien  shall 
not  overreach  the  title  of  the  vendee.  For  the  title  of  him  who  has 
both  a  fair  possession  and  an  equitahle  title,  shall  be  preferred  to  that 
of  a  mere  equitable  interest,  per  Ashhurst,  J.  delivering  the  opinion  of 
the  court.  And  sec  opinion  of  Buller,  J.  in  Lickbarrow  v.  Mason,  6  East, 
25.  in  notis. 

(A)  For  the  cases  in  which  it  is  necessary  that  notice  should  be  given 
to  the-  debtor  upon  the  assignment  of  a  chose  in  action,  see  cases  col- 
lected in  Montague,  B.  L.  343  note  (:t),  and  JoilM  v.  Gibbons*  9  Ves. 
jun.  417- 


THE    LAW    OF   LIEN. 


63 


policy  of  insurance  of  the  bankrupt's,  upon  which 
losses  have  happened.  The  broker  has  a  lien 
upon  the  money  which  he  receives  from  *the  un-  *  64 
derwriters  after  the  bankruptcy.^ c)  It  has  likewise 
been  decided,  that  where  a  factor  sells  the  goods 
of  the  principal  before  the  bankruptcy  of  the  latter, 
and  can  maintain  an  action  against  the  purchaser 
in  his  own  name,  or  discharge  him  by  his  receipt, 
he  has  a  lien  on  the  price  in  the  hands  of  the  pur- 
chaser, and  may  retain  it  though  not  paid  to  him 
until  after  the  bankruptcy  of  his  principal.fd) 
And  where  a  trader  gave  his  creditor  before  bank- 
ruptcy, an  order  upon  a  person  in  a  public  office 
"  out  of  the  money  due  to  the  trader,  and  that 
would  become  due,  to  pay  the  creditor  for  value 
received,"  and  the  creditor  delivered  the  order  to 
the  officer.  It  was  determined,  that  he  acquired 
a  lien  upon  the  money  due  from  the  office  to  the 
trader,  notwithstanding  the  latter  committed  an  act 
of  bankruptcy  before  the  money  was  paid  pursuant 
to  the  order.f  ej  But,  where  a  person  had  accept- 
ed several  bills  of  exchange  on  account  ;  and  for 
the  accommodation  of  a  trader,  and  the  trader  pre- 
vious to  his  committing  an  act  of  bankruptcy,  exe- 
cuted *a  power  of  attorney,  to  the  acceptor  of  the  *  55 
bills,  to  receive  money  due  to  the  trader,  and  hold 
it  as  a  security  to  himself,  to  answer  the  extent  of 
his  engagements  ;  it  was  determined,  that  such  ac- 

(c)  Whitehead  v.  Vaughan,  Co.  V,.  L.  566. 

(d)  Drinkwater  v.  Goodwin,  Coup.  251  , 

(e)  Row  v.  Dawson,  1  Ves.  331-   Yeates  v.  Grove,  1  Yes.  jun.  280. 


65  THE    LAW   OF    LIEN. 

ceptor  had  no  lien  upon  money  received  after  the 
bankruptcy  of  the  trader  under  the  power  of  attor- 
ney, and  that  the  assignees  of  the  trader  might 
recover  it  in  an  action  for  money  had  and  re- 
ceived.^ 

4.  No  lien  can  be  acquired,  unless  the  property 
on  which  it  is  claimed  come  into  the  possession  of 
the  party  claiming  it,  or  of  some  one  who  can  be 
considered  as  his  agent  for  the  purpose  of  receiv- 
66  ing  it(g)  *Thus  where  bankers  having  fraudu- 
lently sold  out  stock  belonging  to  a  customer  which 
stood  in  their  names,  and  applied  the  proceeds  to 
tl^eir  own  use,  and  while  they  remained  solvent 
wrapped  up  certain  bonds  belonging  to  them  in  an 
envelope  inscribed  with  the  customer's  name,  and 
enclosing  a  memorandum  stating  that  they  had  de- 

(/)  Hovill  v.  Lethwaite,  5  Esp.  R.  158. 

(g)  Kinlock  v.  Craig,  3  T.  R.  119.  783.  per  Bailer,  J.  Lickbarrow  ^ 
Mason,  6  East,  25.  in  notis.  In.  Falkener  v  Case,  2  T.  R.  494.  1  Bro.  C 
C  125.  S.  C.  a  ship  at  sea  was  assigned  together  with  a  policy  of  insur- 
ance on  it  for  a  debt  due  from  the  owner.  But  the  policy  being  at  the 
time  of  the  assignment  in  the  hands  of  the  debtor's  broker,  who  claim- 
ed a  lien  upon  it,  and  would  not  part  with  it ;  it  was  agreed  between 
the  debtor  and  creditor,  that  it  should  remain  with  the  broker,  who 
upon  having  his  lien  satisfied  by  the  assignees  of  the  debtor  delivered 
the  policy  up  to  them.  Upon  which  the  creditor  to  whom  it  had  been 
assigned,  filed  a  bill  against  them  in  chancery,  and  the  lord  chancellor 
made  a  decree  m  bis  favour,  observing,  "  There  seems  to  me  to  be  no 
difference  in  cases  where  effects  which  have  been  in  the  possession  of 
the  pawner  arc  pledged  and  where  goods  that  he  lias  a  property  in  are 
left  in  the  hands  of  a  third  person  ;  I  consider  them  equally  as 
pledges.'^) 


(1)  According  to  the  distinction  laid  down  in  Ryall  v.  Rowles,  1  Atk 
1G5.  1  Ves.  348.  S.«C.  this  is  a  case  of  mortgage  and  not  of  pawn.  See 
no->t  Yu  n  of  pawnee 


THE    LAvV   OF    LIEN.  6t> 

posited  the  bonds  with  him  as  a  collateral  security 
for  his  stock,  and  a  promise  to  replace  it,  and  then 
deposited  the  parcel  among  the  securities  belong- 
ing to  other  persons  who  dealt  with  them  ;  but  hav- 
ing given  no  information  to  the  customer  of  any  of 
these  circumstances,  until  the  eve  of  their  bank- 
ruptcy, when  they  sent  him  the  parcel  with  the 
bonds,  saying,  they  must  stop  payment  the  next 
morning.  It  was  determined  that  the  customer 
acquired  no  lien  on  these  bonds  against  the  as- 
signees of  the  banker  :  because  he  had  not  sum- 
cient  possession  of  them,  until  they  were  sent  him 
by  the  bankers,  upon  the  eve  and  in  contempla- 
tion of  their  bankruptcy  ;  *and  the  bankers  could  *  67 
not  be  considered  as  the  agents  of  the  customer 
for  receiving  the  bonds,  he  being  entirely  ignorant 
of  the  transaction  at  the  time  they  were  depo= 
sited.(h) 

(fi)  Wilson  v.  Balfour,  2  Camp.,  579 


*68  THE  LAW  OF  LIEN. 


*CHAP.  V. 


By  what  rneans  the  right  of  lien  is  or  is  not  divested 
or  waived. 


By  pan-      j.  LIENS  at  law  exist  only  while  the  party  en- 

ing  with     .,'•,,  •  •  •  >     1 

posses-  titled  to  them  continues  in  possession  oi  the  pro- 
when  di-  perty  in  which  they  have  been  acquired  ;  and  if 
vested,  j^  once  relinquishes  that  possession  after  the  lien 
attaches,  the  lien  is  gone.(a)  For  by  parting  with 
possession  of  his  security,  he  shows,  that  he  trusts 
merely  to  the  personal  credit  of  his  debtor  ;  and  if 
liens  were  allowed  to  remain  upon  goods,  after 
they  had  been  negotiated  and  sold,  the  conse- 
quences would  be  highly  injurious  to  trade  ;  as  no 
dealer  could  in  that  case  know  when  he  purchased 
goods  safely.  Upon  this  principle  where  a  factor 
having  a  lien  on  goods  of  his  principal  for  the  gene- 
ral balance  of  his  account,  gave  orders  to  the  ware- 
*69  houseman,  in  whose  *warehouse  they  were,  to  de- 
liver them  up  to  a  broker  employed  by  the  princi- 
pal, on  the  occasion,  telling  the  broker  at  the  same 
time  thai  the  principal  intended  to  sell  them  him- 
self to  save  commission,  and  the  broker  sold  them 

(a)  Jones  v.  Pearle,  Str  556.  En  parte  Shank,  1  Atk.  254.  Krugerv. 
Wilcox,  \uibl.  252.  Wilkins  v.  Carmichael,  Doug.  97.  Judgment  of 
IJnl!<  r,  J,  ('.  Bast,  25.  in  notis  Sweet  v.  Pym',  I  Bast,  4.  M'Conibie  v. 
Dories,  7  But,  5. 


THE    LAW    OF    LIEKf.  69 

and  made  out  bills  of  parcels  to  the  principal, 
without  taking  any  notice  of  the  factor :  it  was  de- 
cided, that  such  conduct  on  the  part  of  the  factor 
amounted  to  the  same  thing,  as  if  he  had  delivered 
the  goods  up  in  specie  to  the  principal,  and  that  he 
had  therefore  lost  his  lien  upon  them.(b) 

In  conformity  to  the  same  rule,  where  a  trades- 
man having  a  lien  on  goods  of  his  employer  placed 
in  his  hands,  in  the  course  of  his  trade,  for  the  gen- 
eral balance  of  his  account,  delivered  them  to  a 
ship  carrier  to  be  conveyed  on  the  account  and  at 
the  risk  of  the  owner,  though  the  latter  circum- 
stance was  unknown  to  the  carrier  ;  it  was  deter- 
mined, that  having  once  given  up  the  possession  of 
the  goods  he  could  not  afterwards  recover  his  lien 
by  stopping  them  in  transitu  and  procuring  them 
to  be  redelivered  to  him  by  virtue  of  a  bill  of 
lading  signed  by  the  carrier  during  the  coarse  of 
the  voyage.fcj 

*But  where  a  broker  after  having  parted  with      *7q 
possession  of  a  policy  of  insurance,  on  which  he      when 
had  a  lien  for  his  general  balance  to  his  principal,  vested, 
obtained  it  again,  under  pretence  of  receiving  the 
loss  from  the  underwriters,  but  in  fact  with  a  view 
to  hold  it  as  a  security  :  it  was  holden,  that  the  lien 
revived,  when  the  subject  of  it  came  again  into  the 
hands  of  the  broker.(rf) 

And  though  liens  cannot  be  transferred  by  those 
who  have  fairly  acquired  them  against  tiie  owners, 

(b)  Kruger  v.  Wilcox,  Ambl.  252- 

(c)  Sweet  v.  Pym,  1  East,  4. 

(<*)  Whitehead  v.  Vaughan,  Co.  B.  L.  566. 


76  iHE    LAW    OF    LIEN. 

by  a  tortious  delivery  of  the  subject  to  tLird  per- 
sons :  where  a  party  having  a  lien  on  goods  against 
the  owner,  delivers  them  over  to  a  third  person 
with  notice  of  his  lien,  and  purporting  to  transfer 
his  right  of  lien  to  the  other  as  his  servant,  and  in 
his  name,  and  as  a  continuance  in  effect  of  his  own 
possesson,  his  right  will  not  in  that  case  be  divest- 
*  71      ed.(e)     And  if  a  factor,  being  in  advance  *for  his 

(e)  See  Man  v.  Shiffner,  2  East,  529.  and  diet.  Lord  Ellenborough, 
Ch.  J.  i«  M'Combie  v.  Davies,  7  East,  5.  There  is  no  doulit  from  the 
several  decisions  upon  this  subject,  that  by  relinquishing  the  possession 
of  the  goods  to  the  o~.vner  himself  or  his  agent,  the  party  having  a  lien 
upon  them,  loses  it  ;  neither  is  there  any  doubt,  from  the  cases  of 
Daubigny  v.  Duval,  5  T.  K.  604  and  M'Combie  v.  Davies,  that  a  lien 
cannot  be  transferred  to  the  pawnee  by  a  tortious  pledge  of  the  goods 
on  which  it  is  claimed.  But  the  decisions  do  not  appear  to  agree  so 
perfectly  upon  the  point,  whether  the  pawnor  himself  loses  the  benefit 
of  his  lien  by  such  a  pledge.  For  it  is  to  be  observed,  that  in  the  case 
of  Daubigny  v.  Duval,  a  tender  was  made  to  the  factor  who  had  tor- 
tiously  pawned  the  goods  of  the  balance  due  to  him  previous  to  the 
commencement  of  the  action  against  the  pawnee.  And  Buller,  J  in 
saying,  "  If  the  principal  has  redeemed  himself  as  against  the  factor, 
he  need  not  enquire  into  the  transaction  between  the  factor  and  the 
pawnee,"  seems  to  consider  a  tender  to  the  factor  necessary  ;  and  con- 
sequently that  h.s  lien  continued,  though  he  had  transferred  the  posses- 
sion of  the  goods  to  the  pawnee.  In  the  case  of  Sweet  v.  Pym,  1  East, 
4.  Lord  Kenyon,  Ch.  J.  said,  "  the  right  of  lien  has  never  been  carried 
further  than  while  the  goods  continued  in  the  possession  of  the  party 
claiming  it.  In  the  case  of  Kinlock  v.  Craig,  3  T  R.  1 .19.  it  was  strongly 
insisted,  that  the  right  extended  beyond  the  time  of  actual  possession  ; 
but  the  contrary  was  ruled  by  the  court,  and  afterwards  by  the  house  of 
lords."  It  is  Lo  be  observed,  however,  that  in  the  case  of  Sweet  v. 
Pym,  as  well  as  in  that  of  Kruger  v.  Wilcox,  Ambl.  252.  the  possession 
of  the  goods  was  delivered  up  to  a  person,  who  was  considered  as  the 
agent  of  the  owner.  And  in  the  case  of  Kinlock  v.  Craig,  actual  pos- 
session was  never  obtained  by  the  party  claiming  the  lien.  In  the  case 
of  Lickbarrow  v.  Mason,  6  But,  25.  in  notis,  it  is  laid  down  generally 
by  Buller,  J,  that  by  parting  with  possession  the  lien  is  lost.    In  the 


THE  LAW  OF  LIEN.  71 

principal,  disposes  of  the  goods,  making  the  buyer 
debtor  to  himself,  *he  retains  a  lien  upon  the  price  *T2> 
in  the  hands  of  the  buyer,  who  cannot  after  notice 
pay  it  to  the  principal,  or  his  representatives. (/) 
And  where  the  holder  of  a  bill  of  exchange  gave 
the  drawee  a  letter  from  the  drawer,  which  con- 
tained a  navy  bill,  as  the  fund  out  of  which  the 
bill  of  exchange  was  to  be  paid,  and  which  had 
been  given  to  the  holder  as  a  security  for  the  pay- 
ment of  the  bill  of  exchange,  and  the  drawee  kept 
the  navy  bill  and  received  the  proceeds  :  it  was 
adjudged,  that  the  holder  had  not  lost  his  lien  on 
the  navy  bill  by  such  resignation  of  possessions^ 
A  captain  of  a  ship  too,  who  has  a  lien  upon  the 
cargo  for  freight,  does  not,  it  seems,  part  with  his 
lien  by  depositing  *the  cargo  in  the  king's  ware-  *  73 
house  pursuant  to  the  regulations  of  an  act  of  par- 
liament concerning  the  revenue.(A) 

There  are  some  cases,  too,  in  which  the  posses- 
sion of  the  property  on  which  the  lien  exists,  may 
be  given  up  to  the  owner  himself  without  the  lien 

case  of  M'Combie  v.  Davies,  7  East,  5.  It  was  decided,  that  a  broker 
could  not  transfer  his  right  of  lien  by  a  tortious  pledgee  of  his  principal's 
good,  ;  and  that  the  principal  might  recover  them  from  the  pawnee, 
without  tendering-  him  the  balance  due  to  the  broker ;  and  so  far  it 
agrees  with  the  decision  of  Daubigny  v.  Duval.  Hut  there  does  not  ap- 
pear, in  the  case  of  M'Combie  v.  D  ivies,  to  have  been  any  tender  to  the 
broker,  as  there  was  in  Daubigny  v.  Duval  to  the  factor  previous  to  die 
commencement  of  ll  e  action  .gainst  the  pawnee ;  though  the  broker 
was  in  advance  to  his  principal  in  the  former  case,  as  well  as  the  factor 
fc  the  latter,  and  though  the  pledge  was  equally  tortious  in  both. 

(/)  Drinkwater  v.  Goodwin,  Cowp.  251. 

(g)  Pierson  v.  Dunlop,  Cowp.  571. 

(h)  Per  Lord  Kcnyon,  Ward  v.  Felton,  1  East.,  507.  Abbot.,  276. 


73  THE    LAW    OF    LIEIN. 

being  divested.  Thus,  if  the  commodity  upon 
which  the  party  has  a  lien  be  of  a  perishable  na- 
ture, he  may  safely  part  with  it  to  the  owner,  upon 
a  proper  agreement  with  him,  that  the  lien  shall 
await  the  event  of  an  application  to  a  court  of  law 
or  equity.(f)  And  where  the  property  upon  which 
the  lien  exists,  is  delivered  up  to  the  owner  upon 
the  faith  of  an  assignment,  which  afterwards  turns 
out  to  be  invalid ;  it  seems  that  the  party  is  still  en- 
titled to  the  benefit  of  his  lien. (A) 
By  bank-      2.  Liens  acquired  without  fraud  or  collusion  be- 

ruptcy  l 

not  di-    fore  an  act  of  bankruptcy  is  committed  by  the 

vested  l      J  J 

person  upon  whose  property  they  are  claimed,  are 
not  divested  by  his  subsequent  commission  of 
*  74  such  act ;  the  assignees  taking  the  bankrupt's  *pro- 
perty  subject  to  the  same  equitable  liens  as  those 
under  which  the  bankrupt  himself  enjoyed  \t.(l) 
For  the  general  principle,  of  the  bankrupt  laws, 
that  all  the  creditors  of  the  bankrupt  shall  be 
placed  upon  an  equal  footing,  does  not  extend  to 
such  as  have  fairly  acquired  a  lien  upon  his  pro- 
perty ;  because  the  other  creditors  trusted  to  the 
personal  credit  of  the  bankrupt,  while  those  who 
had  liens  trusted  only  to  the  things  which  were  the 
subjects  of  those  liens,  and  not  to  the  personal 

(i)  Ea  pa  !•  <>■  kenden,  1  All;.  235  and  Copland  v.  Stein,  8T.R.  199. 
/  |   \  ernon  v,  Han]  T.  If.  1 13. 

(Z)  Orlebar  v.  Fletcher,  I  Peer<   Wms.737.     Walker  v.  Harrows,  1 

\tk.!>!      Crown  v.   Ueathi  >te,   i   Vtki   162.    Ex  parte  Dumas,  1  A-tk 

132      LempriereA    Pasley,  2  T  R,   (85.  and  cases  collected.     Tayiprv. 

Wheeler,  2  Vcrn.  566  note  (j)  Ias1  -.•<]     And  sec  Sir  Samuel  Romily' 

i')  Geo  3  c    l  J',       i 


THE    LAW    OF    LIEN.  74 

credit  of  the  owner.  Nor  does  the  allowance  of 
such  liens  upon  the  whole  tend  to  the  prejudice  of 
the  creditors  at  large,  whether  the  liens  be  acquired 
by  a  mere  pawn  of  the  property,  or  for  work  done 
upon  it  in  the  course  of  trade :  for  in  the  former 
case  the  money  lent  to  the  bankrupt  would  never 
have  become  a  part  of  his  assets,  if  the  thing  were 
not  pledged  to  raise  the  loan  ;  and  in  the  latter 
case  the  value  of  the  property  would  not  contri- 
bute so  much  to  increase  the  fund  *out  of  which  *  75 
the  other  creditors  were  to  be  paid,  if  the  work 
were  not  done  upon  it. 

3.  If  a  person  having  a  lien  upon  goods  in  his  -♦" 
possession  when  they  are  demanded  of  him,  claims 

to  detain  them  upon  a  different  ground,  making  no 
mention  of  the  lien,  it  will  be  considered  as  a 
waiver  of  it,  and  trover  may  be  maintained  against 
him  without  evidence  of  any  tender  having  been 
made  of  the  amount  of  his  lien.(m) 

4.  But  no  lien  once  fairly  acquired  shall  be  de- 
vested, while  the  property  on  which  it  exists  re- 
mains in  the  possession  of  the  party  claiming  the 
lien,  by  the  owner's  aliening  the  property  to  a  third 
person.  For  such  person,  though  a  bona  fide  pur- 
chaser must  take  it  subject  to  the  lien.(w) 


(w)  Boardman  v  Sill,  1  Camp.  R.  410.  n. 

(n)  Godin  v.  London  Assurance  Company,  Burr  489. 


X 


75  i'HE    LAW    OF    LIEN* 


Lien  of  Altomies  and  Solictors. 
when  a      rfhe   attornies  and  solicitors   of  the   different 

lien    can  . 

be  chum-  courts  of  law  and  equity  have  a  hen  for  ther  costs 
pipers011  upon  all  papers  of  their  ^clients  that  come  into 
76  their  possession  in  those  characters  for  the  purpose 
of  business  ;  and  though  such  papers  do  not  come 
into  their  hands  in  the  particular  cause,  or  on  the 
particular  occasion  from  which  their  demand  arises. 
In  the  court  of  chancery  they  are  permitted  to  re- 
tain title-deeds.(a)  And  it  has  been  admitted, 
that  an  attorney  has  a  lien  upon  court-rolls,  and 
other  papers  which  come  into  his  hands  as  steward 
of  a  court,  and  receiver  of  rents,  until  he  is  paid 
what  is  due  to  him  from  the  proprietor ;  and  the 
*  77  court  will  not  compel  him  to  *deliver  them  up 
without  satisfaction  of  that  lien. 


(a)  Anon.  12  Mod.  554.  Mitchell  v.  Oldfield,  4  T.  R.  123  Ex  parte 
Vesbitt,  2  Scho.  and  Lefr  R.  279.  An  agent  in  town  lias  a  lien  upon 
papers  in  his  hands  not  immediately  against  the  client,  but  through 
the  medium  of  the  solicitor  in  the  country  employed  by  the  client 
The  agent  having  a  light  to  retain  the  papers  from  the  client,  until 
whatever  remains  due  from  him  to  the  country  solicitor  is  paid  to  the 
agent,  as  far  as  it  will  go  in  satisfaction  of  Ids  demand  against  such  so 
Ward  v.  Hepple,  15  Ves.  jun.  29r.  and  see  16  Yes.  jun.  161. 
And  if  a  client  change  his  solicitor  during  the  cause,  the  former  soli 
tor  will  have  a  lien  upon  papers  in  his  hands  for  his  costs;  hut  the 
court  will  not  allow  tin  solicitor  'o  'too  the  progress  of  the  cause  by 
any  other  means,  Merryweaither  v.  Mellish,  13  Ves.  jun.  161.  O'Dea 
•  I'm.  ]  Scho  and  l.(f.  315.  Twort  v.  Dayrell,  13  Ves.  jun.  19.'? 
Ami  if  a  Miliritor  declines  proceeding  to  ah<  aring  in  the  court  of  chan- 
»■  for  H'  client,  In-  will  have  no  lien  upon  anj  fund  in  rourl 
.   Biron,  14  Ve*   iun  271 


¥  THE  LAW  OF  LIEN.  77 

And  where  an  order  is  obtained  for  taxing  an 
attorney's  bill,  and  delivering  all  books,  papers, 
&c.  upon  the  back  of  which  the  prothonotary  en- 
dorses his  allocatur,  the  attorney  is  entitled  in  the 
first  instance  to  the  possession  of  it,  for  the  purpose 
of  enforcing  payment  of  his  bill.(6) 

This  practice  of  allowing  attornies  a  lien  upon 
the  papers  of  their  clients,  is  not,  according  to 
Lord  Mansfield,  of  very  ancient  date,  but  was 
established  on  general  principles  of  justice.fc) 

But  though  an  attorney  has  in  every  case  a  par-   when  a 
ticular  lien  upon  papers,  until  he  is  recompensed  jSTcan 
for  the  trouble  of  drawing  them,  where  the  pro-  cuimtd 
perty  in  papers  at  the  time  of  the  delivery  of  them  upon  pa 
by  the  client  *to  the  attorney  is  in  a  third  person,      *  78 
the  attorney  cannot  detain  them  against  the  owner 
for  a  debt  due  from  the  client.fd)     And  though  a 
solicitor  have  a  lien  on  a  deed  for  his  costs,  yet  if 
his  client  is  bound  to  produce  it  for  the  benefit  of 
a  third  person,  so  also  is  the  solicitor  ;  the  right  of 
lien  existing  only  as  between  his  client  and  hirri.(e) 

(b)  Alger  V.  Hefford,  1  Taunt.  38. 

(c)  Doug.  104.  and  see  16  Ves.  jun.  280.  At  a  trial  at  Nisi  Priiis. 
Pasch.  6  W.  &.  M.  where  A.  purchased  the  interest  of  a  lease  for  years, 
aud  the  writing  was  left  in  the  hands  of  B.  an  attorney,  to  draw  an 
assignment  of  it  ;  andE.  drew  it,  and  it  was  sealed  ;  but  B.  refused  to 
deliver  it  until  A.  paid  for  it.  Upon  which  A.  brought  trover  against 
,B.  for  the  deed.  It  was  ruled  by  Holt,  Ch.  J.  that  the  action  well  lay, 
because  B.  might  have  an  action  for  what  he  deserved,  but  that  he 
could  not  detain  for  it.    Anon,  ex  rel.  Magistri  Place,  1  Ld.  Raym.  738. 

(d)  Ex  parte  Bush,  7  Vin.  Ab.  74.  Ex  parte  Bell,  18  Aug.  1803.  Co 
B.  L.  429.  This  is  considered  as  a  doubtful  point  in  Bac.  Ab,  tit.  At- 
temey.(/) 

(r)  Furlong  v.  Howard,  2  Scho.  andLef.  115. 

10 


78  THE  LAW  OF  LIEN. 

And  if  a  tenant  for  life  give  deeds  into  an  attor- 
ney's hands,  the  attorney  has  no  lien  upon  them 
against  the  remainderman  ;  for  that  would  enable 
a  tenant  for  life  to  charge  a  remainderman,  and  to 
create  a  greater  interest  in  another  than  he  himself 
possessed.(/) 

If  writings  too  are  delivered  to  an  attorney  under 
a  special  agreement,  or  for  a  particular  purpose, 
upon  a  special  trust,  not  to  be  subject  to  the  gene- 

*  79  ral  lien,  he  *cannot  detain  them.  Thus  where  the 
plaintiff  had  an  estate  mortgaged  to  him,  and  the 
defendant  who  was  an  attorney,  and  who  drew  the 
mortgage,  did  by  that  means  get  all  the  deeds  re- 
lating to  the  title  into  his  possession,  and  refused 
to  deliver  them  to  the  plaintiff,  unless  the  mortga- 
gor would  pay  a  debt  which  the  defendant  pre- 
tended to  be  due  from  him  :  upon  a  motion  for  a 
rule  to  deliver  up  the  deeds  to  the  plaintiff  upon 
payment  of  what  was  due  for  drawing  and  en- 
grossing the  mortgage,  the  court  was  of  opinion, 
that  though  an  attorney  might  detain  papers  until 
the  money  be  paid  for  drawing  them,  he  cannot 
detain  any  writings  which  are  delivered  to  him 
upon  a  special  trust,  even  for  the  money  due  to  him 
in  that  very  business  ;  and  a  rule  was  accordingly 

When  no  made  for  delivering  up  the  dceds.(g)     And  if  an 

Ik  claim- 
ed. (/)  Ex  parte  Nesbitt,  2  Scho.  r.n.l  Lcf.  279.  and  sec  Hu:nc  v.  Parker, 

2T.  R.  376.  and  post,  lien  of  pawnee. 

(<f)  Lawson  v.  Dickenson,  8  .Mod.  306.     The  case,  however,  ex  parte 

Sterling,  16  Ves.  jun.  25K.  decides  that  a  mere  delivery  of  papers  for  a 

[  arti<  idar purpose,  as  for  preparing  a  mortgage,  will  not  prevent  the 

leyfromha  n,  th  re  being  no  special  agreement 

to  thai  dlcct 


THE    LAW    OF    LIEN.  79 

attorney  or  solicitor  take  security  from  his  client 
for  the  money  due  to  him,  he  thereby  gave  up  his 
lien  for  the  sum  secured  upon  *any  papers  then  in      *  80 
his  possession,  or  which  may  come  into  his  posses- 
sion after  wards,  (h) 

Though  an  attorney  is  entitled  to  a  lien  upon 
papers  which  come  into  his  hands  before  the  bank- 
ruptcy of  his  client,  as  well  against  the  assignees, 
as  against  the  bankrupt,  according  to  the  general 
rule  of  law  that  no  one  can  subject  his  property  to 
the  lien  after  he  is  become  a  bankrupt,  papers  re- 
ceived from  the  client  after  his  bankruptcy  cannot 
be  retained  ;(/)  and  where  the  act  of  bankruptcy 
consists  in  lying  two  months  in  prison,  no  lien  can 
be  acquired  on  papers  delivered  after  the  first 
arrest,  (k) 

Attornies   and  solicitors  of  the   several  courts  l, 
have  likewise  a  lien  upon  judgments  recovered  by  ™£s 
their  clients  for  their  bill  of  costs.     And  they  are 
not  only  allowed  to  retain  the  money  if  it  come  into 
their  hands  for  the  amount,(/)  but  courts  both  of 
law  and  equity  have  now  carried  it  so  far,  that  an 

(h)  Cowell  v  Simpson,  16  Ves.  jun.  275. 

(/)  Ex  parte  Bush,  7  Vin.  Ab.  74.    Ex  parte  Bell,  Co.  B.  L.  429. 

(A)  Ex  parte  Lee,  2  Ves.  jun.  285. 

(/)  Mitchell  v.  Oldfield,  4  T.  R.  123.  Welsh  v.  Hole,  Doug-.  226. 
Taj  lor  v.  Popham,  15  Ves.  jun.  72.  But  in  the  case  of  Craddock  v. 
Glin,  12  Mod.  657.  where  a  suit  was  brought  against  an  attorney  for 
money  received  to  the  plaintiff's  use,  and  the  attorney  having  applied 
part  of  the  money  to  pay  himself  for  the  labour  and  expense  he  hud 
incurred  in  a  cause  in  which  the  plaintiff  had  employed  him,  moved 
to  have  his  bill  taxed,  and  an  allowance  of  what  was  due  ;  the  court 
refused  to  interpose  for  that  purpose 


\ 


*81  .        THE  LAW  OP  LIES, 

attorney  or  solicitor  may  obtain  an  order  'to  stop 
his  client  from  receiving  money  recovered  in  a 
suit  in  which  he  has  been  employed  for  him,  until 
his  bill  is  paid.(m)  And  if  the  defendant's  attorney 
pay  to  the  plaintiff  himself  the  debt  and  costs  reco- 
vered, after  notice  from  the  plaintiff's  attorney  not 
to  do  so,  because  his  bill  is  not  satisfied,  the  de- 
fendant's attorney  will  be  liable  to  pay  over  again 
to  the  plaintiff's  attorney  the  amount  of  his  lien  on 
such  debt,  and  costs  of  suit,(w)  though  the  plaintiff 
threatened  to  take  the  defendant  in  execution,  un- 
less the  money  due  to  him  was  immediately 
paid.(o) 
*  82  But  if  the  plaintiff  compromise  the  debt  *and 

costs  with  defendant,  before  the  plaintiff's  attorney 
has  been  paid  his  bill,  the  court  will  not  oblige  the 
defendant  to  pay  him  unless  he  gave  the  defendant 
notice,  before  the  compromise,  not  to  settle  with 
the  plaintiff,  until  his  bill  should  be  discharged.^/?) 

An  attorney  has  likewise  a  lien  for  his  bill  of 
costs  on  money  levied  by  the  sheriff  under  an  exe- 
cution upon  a  judgment  recovered  by  his  client,  and 
is  entitled  to  have  it  paid  over  to  him,  notwith- 
standing the  sheriff  has  had  notice  from  the  party 

(w)  Per  Lord  Mansfield,  Wilkins  v.  Carmichael,  Doug".  104.  Welsh 
v  Hole,  Doug.  226.  In  this  case  Sir  J.  P.urrows  mentioned  to  the  court 
that  the  first  instance  of  such  an  order  was  in  the  case  of  one  Taylor 
of  Evesham,  about  the  time  of  a  contested  election  tor  that  borough. 
And  Lord  Mansfield  said,  that  he  himself  had  argued  the  question  in 
the  court  of  chancery 

(?i)  Welsh  v.  Hole,  Iloni^.  2ib. 

(o)  Read  v.  Dupper,  6  T.  R 

h  \   Hole,  Doug  226 


THE    LAW   OF  LIEN.  82 

against  whom  the  execution  issued,  to  retain  the 
money  in  his  hands,  and  that  the  court  would  be 
moved  to  set  aside  the  judgment  for  irregularity  ; 
and  notwithstanding  a  docquet  has  been  struck 
against  the  client,  who  has  become  a  bankrupt. (q) 

But  where  the  plaintiff  after  having  charged  the 
defendant  in  execution  dies,  and  the  defendant's 
wife  takes  out  administration  to  the  plaintiff,  the 
plaintiff's  "^attorney  will  have  no  lien  upon  the  judg-  *  83 
ment,  so  as  to  prevent  the  court  from  discharging 
the  defendant  on  motion.(7J 

An  attorney  has  also  a  lien  upon  a  sum  awarded 
in  favour  of  his  client,  where  the  cause  is  referred 
to  arbitration,  as  well  as  upon  a  sum  recovered  by 
judgment ;  and  if  the  defendant  after  notice  from 
the  plaintiff's  attorney  to  pay  him  the  amount  of  the 
damages  and  costs  awarded,  pay  it  over  to  the 
plaintiff  himself,  the  attorney  may  compel  a  repay- 
ment of  it  to  himself,  and  will  not  be  prejudiced 
by  a  collusive  release  from  the  plaintiff  to  the  de- 
fendant.^) 

There  is,  however,  it  should  be  observed,  a  con- 
siderable difference  between  the  practice  of  the 
court  of  king's  bench,  and  that  of  the  court  of 
common  pleas,  with  respect  to  the  lien  of  attornies 
en  judgments  recovered  for  their  clients.     In  the 

(?)  Griffin  v.  Evles,  1  H.  Bl.  122.    The  assijp  "     !    •' t  can- 

Hot  take  oul  of  court  money  paid  in  by  the  de  te 

bankrupt's  suit,  until  they  have  paid  the  at  ill, 

Owston  v.  Bryan,  Cr.rr.es,  115. 

(r)  Pyne  v.  Erie,  8  T.  R.  407. 

(a)  Ormerod  v.  Tate,  1  East,  464. 


83  THE  LAW  OF  LIEN. 

court  of  king's  bench,  the  attorney  is  holden  to 
have  a  lien  upon  the  judgment  paramount  to  any 
claim  of  set  off  by  the  parties.(f)  And  though 
that  court  will  not  interfere  so  as  to  prevent  the 

*  84      plaintiff  *irom  settling  his  own  cause,  yet  they  will 

not  allow  the  defendant  in  one  cause  to  set  off  the 
costs  recovered  by  him  in  another  against  the 
plaintiff,  until  the  lien  of  the  plaintiff's  attorney 
upon  the  debt  and  costs  recovered  against  the  de- 
fendant is  satisfied,  or  an  undertaking  is  entered 
into,  to  that  effect  ;(V)  though  the  same  attorney 
who  claims  the  lien  was  employed  in  both  cau- 
ses, (v)  But,  according  to  the  practice  of  the  court 
of  common  pleas,  an  attorney  has  only  a  lien  sub- 
ject to  the  equitable  claims  of  the  parties  to  the 
suit,(?f)  and  will  not  be  allowed  to  prevent  a  set-off 
in  costs  between  them  by  any  claim  of  lien  upon 
such  costs. (x)  Accordingly,  where  there  were  se- 
veral defendants,  some  of  whom  suffered  judgment 
by  default,  while  the  others  went  to  trial  and  ob- 
tained a  verdict  ;  the  court  of  common  pleas  per- 
mitted the  costs  and  damages  on  the  judgment  by 
default  to  be  deducted  from  the  costs  taxed  on  the 

*  85     postea  to  those  Mefendants  who  had  a  verdict,  (on 

affidavit  that  the  former  defendants  acted  under 


(t)  Glaister  v.  Hewer,  8  T.  R.  70.    Sellon's  Pract.  453. 

(«)  Mitchell  v.  Oldfield,  4  T.  R.  124. 

(•»)  Morsland  v.  Pasley,  2  H.  Bla.  441.  n.  («). 

(w)  Schoole  v  Noble,  1  Hi  Bla.  23.  Nunez  v.  Modigliani,  1  H.  Bla. 
217  Roberts  \  M  ickoul,  cited  by  counsel  in  Thrustout  dem.  Barnes 
\ .  Crafter,  2  Bla.  R.  827    Per  Rooke  j  3.  Swaine  v.  Senate,  2  N.  R.  99. 

(x)  Hall  v.  Oddv,  2  Bos.  8c  Pul.28.    Embdm  v.  Darly,  1  N.  R.  22. 


THE    LAW   OF    LIEN.  85 

the  authority  of  the  latter,  who  had  undertaken  to 
pay  costs,)  notwithstanding  a  claim  of  lien  by  the 
attorney  on  the  costs.(y)  Nor  will  the  court  of 
common  pleas  depart  from  the  rigour  of  this  rule, 
though  it  should  appear  that  the  client  was  insol- 
vent, and  there  was  no  other  fund  out  of  which  the 
attorney  could  be  paid.fz)  The  same  principle 
appears  to  be  followed  in  the  court  of  chancery 
with  respect  to  the  lien  of  solicitors  on  costs, 
where  different  demands  arise  in  the  same  cause, 
as  in  the  court  of  common  pleas  ;  the  costs  in  such 
case  being  arranged  according  to  the  equities  of . 
the  parties,  allowing  the  ^solicitor  a  lien  only  upon 
the  balance  remaining  under  that  arrangement. (a) 
But  though  the  courts  will  none  of  them  interfere 
on  behalf  of  the  attorney,  where  the  client  has 
fairly  and  honestly  terminated  the  affair  with  his 
adversary,  and  the  Ujhole  debt  and  costs  have  been 
pmd,(b)  none  of  thejpourts  will  permit  an  attorney 
to  be  defeated  of  his  remedy  for  his  costs,  by  a  col- 
lusive settlement  between  his  client  and  the  other 


(y)  Schoole  v.  Noble,  1  H.  Bla.  23. 

(z)  Vaughan  v.  Davies,  2  H.  Bla.  440  Dennie  v.  Elliott,  2  H.  Bla. 
587.  In  the  case  of  Hall  v.  Odely,  2  Bos.  £c  Pul.  29.  Ld  Eldon,  Ch.  J. 
said,  he  found  this  to  be  the  settled  practice  of  the  court  of  common 
pleas  with  much  surprize,  since  it  stood  in  direct  contradiction  to  the 
practice  of  every  other  court,  as  well  as  to  the  principles  of  justice 
Hexth,  J  and  Rooke,  J.  said  they  had  no  objection  to  have  the  prac- 
tice reconciled.  But  Rookc,  J.  added,  that  it  did  not  appear  to  him 
unfair  as  it  then  stood,  the  attorney  looking'  in  the  first  instance  to  the 
personal  security  of  his  client :  and  afterwards,  in  the  caso  of  Swaine  V 
Senate,  2  N.  R.  made  the  same  observation. 

(a)  Taylor  v.  Popham,  15  Yes.  jun  7- 

(*)  Doug.  238.   2  Ves.  25. 


36 


THE  LAW  OF  LIEiN. 


party  :(c)  and  accordingly,  where  a  client,  at 
whose  suit  a  defendant  was  in  custody  for  non- 
payment of  costs  taxed  for  scandal  and  imperti- 
nence, executed  a  mere  voluntary  release  to  the 
defendant  without  the  knowledge  of  the  clerk  in 
court,  the  lord  chancellor  would  not  discharge  tin 
defendant  till  he  had  paid  the  clerk  his  fees.(d) 


Lien  of  Clerks  of  the  severed  Courts. 

*  87  A  clerk  in  chancery  has  a  lien  upon  *papers  in 

clerk  in  nis  hands  till  his  bill  is  paid  ;  and  where  a  country 
T'  client  employs  an  attorney  or  solicitor  in  the  coun- 

try, in  a  cause  in  chancery,  and  the  solicitor  em- 
ploys a  clerk  in  chancery,  and  the  client  in  the 
country  pays  the  solicitor  his»bill,  but  the  solicitor 
neglects  to  pay  the  clerk  in  chancery ;  though  the 
country  client  is  not  bound  to  pay  the  clerk  in 
chancery,  the  court  will  allow  the  latter  to  retain 
any  papers  he  may  have  in  his  possession.^ e) 
s^  A  six  clerk  is  entitled  to  retain  papers  in  his 

hands  for  his  fees,  though  the  client  has  paid  his 
solicitor,  and  the  solicitor  has  satislied  the  clerk  in 

(c)  Bwainev.  Sarnie,  2  N.  U.  99.    Omierodv.  Tate,  1  East,  464. 

(rf)  '2  Vis.  £25.    1  Bac.Ab.f).  304. 

(,)  Farewell  v.  Coker,  2  P.  Wms.  160.  The  court  of  K.  B.  will  grant 
a  uile  fur  (he  deck  of  the  crown  oilice,  or  a  clerk  in  court,  where  their 
tills  Lave  been  included  or  taxed  in  the  attorney's  bill,  to  be  paid  im- 

mediatelj  bj  tbeelienl     Waldron's case,  2  Str    I12&.  Ilex  v.  Smollet, 
I  Bun    I 


THE    LAW    OV    LILIN.  o/ 

court  the  whole  of  his  bill  ;(/)  anil  a  sworn  clerk 
cannot  retain  from  a  six  clerk  his  proportion  of  the 
fee,  though  the  former  has  given  credit  to  the 
client.(g) 

But  a  clerk  in  court  who  lends  money  to  a  soli- 
citor to  carry  on  a  cause,  shall  not  be  entitled  to 
detain  the  papers  of  the  *client  as  a  pledge  for  the      *  88 
money  so  advanced.(/fv) 

Whether  a  clerk  of  assize  is  entitled  to  a  lien  cierkof 
upon  papers  in  his  hands  for  his  fees  remains  tin-  abS1/' 
decided.  In  the  case  of  Rex  v.  Bury,  Doug.  185. 
note  26.  which  came  on  upon  a  rule  to  show 
cause  why  an  attachment  should  not  issue  against 
the  defendant,  who  was  a  clerk  of  assize  on  the 
Norfolk  circuit,  for  not  obeying  a  writ  of  certiorari 
to  remove  an  indictment  for  murder,  and  a  special 
verdict  founded  upon  it,  in  the  case  of  Rex  v. 
Bothwick,  the  defendant  insisted,  that  he  had  a 
right  to  retain  the  record  till  he  should  be  paid  his 
fees  for  drawing,  engrossing,  &.c.  which  the  attor- 
ney for  the  prisoner  refused  to  pay,  on  the  ground 
of  their  being  exorbitant.  However  on  the  attor- 
ney's undertaking  to  pay  as  much  as  should,  on  a 
reference  to  the  master,  be  reported  to  be  due,  the 
record  was  returned  into  the  court :  upon  which 
the  rule  was  discharged,  Lord  Mansfield  saying 
that  he  should  be  very  unwilling  to  determine  that 
a  clerk  of  assize  had  a  lien  on  the  records  of  the 


(/)  Taylor  v.  Lewis,  2  Ves.  111.    3  Atk.  727.  S.  C 
(g-)  Ex  parte  Six  Clerks,  3  Ves.  jun.  589. 
(h)  Greyv.  Ceckerill,  2  Atk.  114. 

1! 


88  THE    LAW    OF    LIMA. 

court  for  bis  fees  ;  for  that  he  foresaw  great  incon- 
venience from  such  a  doctrine. 


39  *Lien  on  Bankers. 

Bankers  have  a  lien  upon  all  paper  securities  of 
their  employers  in  their  possession,  not  only  for 
debts  accruing  on  the  particular  account  for  which 
the  securities  were  deposited,  but  also  for  a  gene- 
ral balance  due  to  them  on  other  accounts  from 
the  same  employer.(a) 

But  if  the  banker  receive  any  particular  security 
under  such  special  circumstances,  as  amount  to 
evidence  of  an  agreement  to  waive  his  right  to  a 
general  lien  upon  it,  he  cannot  afterwards  retain 
it  for  a  general  balance  due  to  him.(6)  Accord- 
ingly, where  a  banker  being  in  advance  to  his  em- 
ployer to  the  amount  of  fourteen  hundred  pounds, 
received  from  him  securities  as  a  pledge  for  one 
thousand  only  ;  it  was  determined,  that  he  had  no 
lien  upon  those  securities  for  any  further  sum  than 
the  thousand  pounds. (c) 

Where,  however,  a  person  lodges  bills  with  hi^ 

90      banker  payable  at  a  future  date,  "and  the  banker 

advances  him  a  sum  to  the  amount  of  part  of  the 

bills  so  locked,  and  enters  the  discount  upon  some 

(a)  Jourdain'e  v  Lefevre,  t  Esp.  R.  f>6.    Davis  \.  Bowsher,  .'•  T   R 
488 ,  and  gee  Savill  v.  Barchard,  i  Esp.  58. 

(b)  Davis  v.  Bowsher,  5  T.  R.  488. 

(r)  Vanderzec  v.  Willis, 3  Bro.  r  C.  21.  Bee  lien  of  pawnee  note  (}■: 


rm:  law  ov  lien.  90 

bills  selected  from  those  so  lodged,  the  banker 
does  not  by  such  selection  waive  his  lien  upon  the 
remaining  h\\h.(d) 


Lien  of  Calico  Printers. 

A  calico  printer  has  not  only  a  particular  lien 
upon  linen  placed  in  his  possession  for  the  execu- 
tion of  the  purposes  of  his  trade,  for  work  done  to 
that  linen,  but  also  for  a  general  balance  due  for 
printing  other  linen  for  the  same  employer.(a) 

But  this  lien  of  the  calico  printer  for  his  general 
balance  is  confined  to  such  general  balance,  as 
arises  from  work  done  by  him  in  the  course  of  his 
trade,  and  cannot  be  claimed  for  debts  due  on 
other  accounts  from  his  employer.(6) 


Lien  of  Carriers  in  general. 

Every  common  carrier(cj  is  warranted  *by  the      *91 
common  law  to  detain  cootls  delivered  to  him  for  hav^T* 


particu- 
lar lien. 


(</)  Davis  v.  Bowsher,  5  T.  R.  488. 

(a)  Ex  parte  Andrews,  Co.  B.  L.  429.  Weldon  v.  Gould,  3  Esp.  It.  268, 

(6)  Weldon  v.  Gould,  3  Esp.  R.  268. 

(c)  Every  person  who  undertakes  generally  to  carry  the  goods  of  all 
persons  indifferently  for  hire,  as  masters  and  owners  of  ships,  lighter- 
men, hoymen,  and  proprietors  of  waggons,  come  under  the  denomina- 
tion of  common  carriers      6isboarn  v  Hurst,  1  Salk.  249,  Bac.  Ab.  tit. 


91  THE    LAW    OF    LIEN. 

conveyance,  until  the  price  of  the  carriage  of  those 
Because  particular  2*oods  is  paid  :fd)  upon  the  same  princi- 

corapel-    *  7  i  -l  r 

table  to   pie  that  inkeepers  and  other  bailees,  whom,  lrom 
goods      the  nature  of  their  employment  the  law  obliges  to 
receive  goods,  are  on  that  account  allowed  a  lien 
on  them,  until  a  proper  compensation  be  made  for 
the  trouble  or  expense  incurred  by  the  bailment. 
For  by  the  same  law  the  carrier  is  compellable  to 
receive  and  carry  the  goods  of  any  one  who  offers 
*  92      them  for  *that  purpose,(e)  provided  he  has  suffi- 
cient convenience  for  such  carriage,  and  a  reason- 
Though  able  reward  is  tendered  him  at  the  time//)     And 

thegoods 
are  sto- 

Carriers.     And  if  the  proprietor  of  a  stage  coach  take  a  distinct  price 
fur  the  carriage  of  goods,   he  shall  be  deemed  a  common  carrier.  2 
Show.  128.  Middleton  v.  Fowler,  1  Salk.  282.     But  a  hackney  coach- 
nan  is  not  a  common  carrier  within  the  custom  of  the  realm,  Com.  R 
:.'5.    Nor  is  the  post-master-gcneral,  Lane  v.  Cotton,  1  Ld.  Raym.  646 
Whitfield  v.  Lord  Le  Despencer,  Cowp.754. 

(d)  Skinner  v.  Upsliaw,  Ld.  Raym.  752.  and  per  Holt,  Ch.  J.  Yorke  v. 
Grenaugh,  Ld.  Raym.  867.  Rushforth  v.  Hadfield,  6  East,  519.  7  East, 
224.  Rut  a  carrier  or  warehouseman  has  no  lien  on  goods  for  booking 
or  warehouse  room,  when  the  goods  are  taken  by  the  owner  from  the 
waggon,  and  have  never  been  in  the  warehouse.  Lambert  v.  Robinson, 
1  Esp.R.  119. 

(c  Yorke  v.  Grenaugh,  Ld.  Ray,  867-  Kirkman  v.  Shawcross,  6  T.  R 
14.  Oppenhcim  v.  Russell,  3  Bos   &  Pul.  42. 

(./')  2  Show.  827.  Per  Holt,  Ch.  J.  Lane  v.  Cotton,  12  Mod.  484.  Ld 
Raym.  652  \.  Though  an  action  will  lie  against  a  carrier  for  refusing 
to  take  a  packet  proper  to  be  sent  by  him,  if  his  horses  are  not  loaded 
or  his  waggon  not  full,  no  action  will  lie  for  such  refusal  if  his  horses 
be  loaded  or  his  Waggon  full.  Bui.  N.  1'.  70.  and  if  a  man  come  to  lade 
goods  <>n  board  a  ship  at  an  unseasonable  hour  the  master  is  not  obliged 
to  taki  them  in.  Morse  v.  Slue,  cited  by  Holt,  Ch.  J.  Lord  Raym.  652. 
A  carrier  may  also  make  a  special  contractor  refuse  to  take  goods  in 
extraordinarj  cases,  hut  upon  extraordinary  terms,  Gibbon  v.  Paynton, 
1  Burr.  2298.      And  of  Late  J  ears  they  have   been  allowed  to  limit  their 

very  considerablj    by   special  notices      Nicholson  v 


I  HE    LAW    OF    LIEN.  92 

for  this  reason  he  is  not  bound  to  enquire  into  the 
title  of  the  person  who  delivers  the  goods  to  him  ; 
and  may  retain  them  against  the  true  owner  until 
the  carriage  be  paid  5  though  the  latter  should 
prove,  that  they  were  stolen  from  him  by  the  per- 
son from  whom  the  carrier  received  them.(g)  But 
no  carrier  *can,  by  the  common  law,  claim  a  lien  *  93 
for  his  general  balance,  or  to  any  greater  extent 
than  the  carriage  price  of  the  particular  goods. 
Such  a  lien  may  indeed  be  established  in  this  as 
well  as  in  any  other  case  by  proof  of  an  express 
contract  for  it ;  or  it  may  be  implied  from  the  gen- 
eral usage  of  trade  ;(/i)  or  the  particular  mode  of 
dealing  between  the  parties  themselves. (?)  But 
the  frequent  attempts  made  by  carriers  of  late 
years  to  alter  the  situation  in  which  the  law  has 
placed  them,  by  limiting  their  responsibility,  on 
the  one  hand,  by  special  notices,  and  on  the  other 
by  extending  their  lien  so  as  to  cover  their  general 
balances,  have  rendered  the  courts  extremely  jea- 
lous of  admitting  such  an  extension  ;  and  accord- 
ingly in  the  case  of  Rushworth  v.  Hadfield,  6  East, 
519.  7  East,  224.  it  being  determined  by  the  court 
K.  B.  that  the  claim  of  carriers  to  a  lien  for  their 
general  balance  was  contrary  to  the.  policy  of  the 

Willan,  5  East,  507.    Clay  y.  Wilkin,  1  H.  Bla.  298.  I/.ctv  v.  Mountaii 
\  East,  371. 

(§•)  Case  of  the  Exeter  carrier  cited  by  Lord  Holt,  in  Yorke  v.  Gre- 
naugh,  2  Ld.  Raym.  867- 

(h)  Aspinall  v.  Pickford,  3  Bos.  &  Pul.  44.  n,  But  see  Lord  Ellen- 
borough's  observations  upon  this  case  in  Rushforth  v.  Hadfield, 
Smith's  R.  637. 

(?)  Rushforth  v.  Hadfield,  6  East,  519.    7  East,  224. 


98  THE    LAW   OF    LIEN. 

common  law,  and  the  interest  of  trade,  and  by  ne 
means  necessary  for  their  own  convenience.     To 

94,  establish  such  a  claim  on  general  usage  *the  proof 
must  be  very  strong ;  and  evidence  of  a  few  recent 
instances  of  detainers  by  carriers  for  their  general 
balance  would  not  be  sufficient  to  furnish  an  infer- 
ence that  the  party  who  dealt  with  the  carrier  had 
knowledge  of  the  usage,  and  thence  to  warrant  a 
conclusion,  that  he  had  contracted  with  reference 
to  it,  and  adopted  the  general  lien  into  the  particu- 
lar contract.  But  it  was  at  the  same  time  admitted 
by  the  court,  that  either  the  general  usage  of  trade, 
if  notorious,  uniform,  and  long  established,  or  the 
previous  usage  of  the  parties  between  themselves, 
if  clearly  proved,  would  be  sufficient  evidence  of  a 
contract  for  a  general  lien. 

In  conformity  with  the  rules  by  which  all  the 
liens  at  common  law  are  governed ;  if  the  carrier 
parts  with  the  goods  out  of  his  own  or  his  agent's 
hands  after  the  lien  has  attached,  the  lien  is  gone. 
And  an  usage  for  carriers  to  retain  goods  cannot  be 
supported  in  opposition  to  the  consignor's  right  to 
stop  in  transitu.(A-)  Neither  has  a  carrier,  who  by 
the  usage  of  a  particular  trade,  is  to  be  paid  for 
the  carriage  of  goods  by  the  consignor,  any  right 

<■  95  to  detain  *them  against  the  consignee,  who  has 
paid  the  price  of  them  for  the  carriage  of  other 
goods  of  the  same  sort  sent  by  the  consignor.(Z) 

(k)  Oppenheimv.  Russel,  3  Bos.  &  Pul.  42.  Lickbarrow  v.  Mason,  6 

But,  25.  in  not  is. 

")  Butlerv  Walcott,  2  Bos.  8c  Pul.N.R.64. 


THE  LAW  OF  LIEN.  95 


Lien  of  Carriers  by  Water. 

Owners  and  masters  otgeneral(a)  ships  and  ves- 
sels carrying  goods  for  hire  on  the  high  seas  or  on 
navigable  rivers,  as  hoymen  and  lighterman,  are 
common  carriers  by  the  custom  of  the  realm,  and 
being  under  the  same  obligation,  and  subject  to  the 
same  responsibility  by  the  common  law  as  carriers 
by  land,(6)  are  entitled  by  that  *law  to  the  same      *9G 


(a)  By  the  term  general  ship,  is  meant  a  ship  which  is  employed  by 
the  masters  or  owners  of  it  to  convey  the  goods  of  various  merchants 
unconnected  with  each  other,  to  the  place  of  their  destination.  And 
the  term  is  here  used  in  contradistinction  to  a  chartered  ship,  which 
is  employed  under  a  sealed  instrument  called  a  charter  party.  Abbot, 
112.215. 

(b)  Coggs  v.  Bernard,  Ld.  Raym.  918.  1  Ventr.  238.  Jones  on  Bailm. 
106.  Abbot,  249.  The  responsibility  of  carriers  by  water  stood  on  the 
same  footing  at  common  law  as  that  of  carriers  by  land:  both  being 
alike  responsible  for  every  damage,  but  that  which  accrued  by  the  act 
of  God  or  the  king's  enemies.  Abbot,  223.  Both,  however,  have  suc- 
ceeded in  altering  the  situation  in  which  the  common  law  had  placed 
them  ;  the  latter  by  special  notices,  the  legality  of  which  seems  now  to 
be  clearly  established,  ante,  note  (/),  and  the  former  by  introducing 
clauses  into  the  bills  of  lading  to  take  away  the  responsibility  of  the 
masters  and  owners  in  various  cases  in  which  they  would  Otherwise  be 
responsible.  (The  right  of  doing  which  appears  to  be  fully  admitted, 
Nicholson  v.  Willan,  5  East,  507.  Abbot,  218.  59.  62.  Christian's  notes 
to  3  Bla.  Com.  165.  note  7.)  And  by  applications  to  the  legislature, 
which  has  thought  proper  so  far  to  accede  to  their  wishes,  as  entirely 
to  take  away  the  liability  of  the  owners  in  cases  of  damage  by  fire  ;  26 
Geo  3.  c.  86.  s.  2.  and  to  limit  it  to  the  value  of  the  ship  and  freight  in 
case  of  embezzlement  or  robbery,  7  Geo.  2.  c.  15.  26  Geo.  3.  c.  86.  a.  1 ; 
and  to  discharge  both  the  master  and  owners  from  any  responsibility 
fbr  any  gold  and  silver,  diamonds,  watches,  jewels  orpreeious  stones, 
unless  the  shipper  declare  the  true  nature  thereof  to  the  master  or 
owners  by  the  bill  of  lading,  or  otherwise  in  writing,  26  Geo.  3  o.  86  .<=- 


96  THi:    LAW    OF    LIEN. 

particular  lien  for  the  price  of  the  carriage  of  goods 
97      delivered  to  *them  in  the  course  of  their  trade ; 
and  the  luggage  of  a  passenger  may  be  detained  by 
the  master  of  a  vessel  for  his  passage  money.(ra) 

The  right  of  retaining  possession  of  the  cargo, 
until  the  freight  of  the  ship  was  discharged,  ap- 
pears to  have  been  allowed  to  the  master  by  most 
of  the  maritime  codes  of  Europe.  By  the  civil 
laws,  as  well  as  by  those  of  Oleron,  he  is  entitled 
to  detain  the  cargo  until  payment  is  made  of  the 
freight  and  other  charges,  such  as  primage  and 
average  due  in  respect  of  it.  The  same  privilege 
was  given  to  him  by  the  maritime  ordinances  of 
France.fw)  According  to  our  law  whether  the 
ship  be  a  chartered  or  a  general  ship,  the  master  is 
not  (unless  there  be  an  express  stipulation  that  he 
shall  be,)  bound  to  part  with  the  possession  of  any 
part  of  his  cargo,  until  the  freight  and  other  charge? 

3  ;  but  except  in  this  last  case,  the  liability  of  the  master  remains  the 
same  as  at  common  law,  unless  varied  by  a  special  contract,  Abbot. 
265.  The  justice  of  admitting' common  carriers  to  limit  their  responsi- 
bility, when  the  true  value  of  the  goods  entrusted  to  them  is  concealed 
bv  the  'owner,  is  obvious,  when  it  is  considered  that  (except  in  the 
cases  just  mentioned)  they  arc  liable  for  unavoidable  accidents,  and 
that  by  requiring  a  declaration  of  the  value  of  the  g*oods,  as  the  condi- 
tion of  their  responsibility,  they  do  not  in  fact  decline  the  obligation 
which  the  law  has  imposed  upon  them,  of  carrying  for  reasonable  reward, 
butonh  secure  themselves  from  being  defrauded  of  a  reward  which  is 
reasonable  and  adequate  to  the  risk  they  incur ;  and  when  it  is  recol- 
lected too,  thai  a  carrier  was  never  considered  as  liable  to  any  greater 
i  utenttban  the  value  of  the  goods  as  represented  iohhn  by  the  bailor 
Oarth  485. 
(m)  Wolf  v.  Summers,  2  Campb.  681 
.    Vbbot,  24  I 


THE    LAW    OF    LIE1S.  97 

due  in  respect  of  such  part  are  paid,(o)  It  has 
*been  holden  too,  that  he  may  detain  any  part  of  *98 
the  merchandise  for  the  freight  of  all  that  is  con- 
veyed to  the  same  person. (y>)  But  where  the  time 
and  manner  of  the  payment  of  the  freight  are  re- 
gulated by  express  stipulations  in  the  charter  party. 
(which  is  frequently  the  case)  the  payment  can 
only  be  enforced  by  proceeding  on  the  charter- 
party.^/ J  Nor  can  the  master  detain  the  goods  on 
board  the  ship  until  these  payments  are  made,  as 
the  merchant  would  then  have  no  opportunity  of 
examining  their  condition.(/j  The  usual  prac- 
tice in  England  is  to  send  the  goods  to  a  wharf, 
and  order  the  wharfinger  not  to  part  with  them  un- 
til the  freight  and  other  charges  are  paid/s)  which 
the  master  may  do  if  he  is  doubtful  of  the  pay- 
ment, without  losing  his  lien,  as  the  possession  of 
the  wharfinger  will,  in  such  case,  be  considered  the 
same  as  the  master's.  Or,  if  by  the  regulations  of 
the  revenue  the  goods  are  to  be  landed  and  put 
into  the  king's  warehouse,  if  the  duties  are  not 
paid,  the  master  may,  it  seems,  enter  them  in  *his  *  99 
own  name,  and  thereby  preserve  his  lien.(?) 

(o)  Abbot,  276  Anon,  cases,  12  Mod.  417,  511.  Artazav.  Smallpiece 
1  Esp.  R.  23. 

(  p)  Soldergreen  v.  Flight,  cited  6  East,  622.  Abbot,  245. 

(?)  Abbot,  276. 

(r)  Abbot,  245.  But  see  Artaza  v.  S-mallpiece,  1  Esp.  R.  23 

(s)  Abbot,  246. 

(t)  Abbot,  276-  J  have  said  it  scans,  because  Mr.  Abbot  gives  lis  no 
authority  upon  this  point;  and  in  the  case  of  Ward  v.  Felton,  1  East, 
507.  Ed.  Kenvon  doubted  whether  the  captain  parted  with  his  lien  on 

12 


99  THE  LAW  OF  LIES. 

But  according  to  the  principle  by  which  all  liens 
by  the  common  law  are  regulated,  if  the  master 
once  voluntarily  parts  with  the  possession  of  the 
goods  out  of  his  own  or  his  agent's  hands,  he  loses 
his  lien  upon  them,  and  cannot  afterwards  re- 
claim them.(u) 


Lien  of  Dyer. 

Dyers 
have  a 

particu-       Though  dyers,  in  common  with  other  manutac- 

larlien.  i 

*  100    turers,  are  not  under  any  general  obligation  of  law 

to  receive  the  goods  of  *every  one  who  may  send 

them  for  the  purpose  of  being  dyed,(«J  they  have 

a  particular  lien  upon  all  goods  entrusted  to  them 

But  not  in  the  course  of  their  trade,  and  may  retain  those 

a. general  goods  for  the  work  done  upon  them.     But  there  is 

no  usage  of  trade,  which  entitles  them  to  retain 

such    goods   for   any   other   demand  against  the 

Unless  owner,  nor  can  they  maintain  a  claim  to  a  lien  for 

there  be  a  general  balance  accruing  from  work  done  in  the 

an    ex-  o  ° 

press 

ri^nV"  the  ground  for  freight,  by  depositing  them  in  the  king's  warehouse, 
pursuant  to  the  regulations  of  the  act  of  parliament. 

(»)  Anon.  12  Mod.  511.  Artaza  v.  Smallpiece,  1  Esp.  R.  23.  Abbot, 
246.  In  the  case  of  Soldergreen  v.  Plight,  Guildhall,  sitt.  after  Trin. 
1796,  before  Ld.  Kenyon  Ch.  J.  cited  Hanson  v.  Meyer,  6  East,  622.  the 
captain  of  the  ship  was  allowed  a  lien  on  a  part  of  the  cargo,  which 
had  been  removed  into  a  lighter  alongside  of  the  ship  sent  by  the 
vendee,  and  which  the  captain  afterwards  fastened  to  the  ship's  side  to 
prevent  its  final  removal. 

(a)  Collins  v.  Qngley  cited  Brennan  v.Currint,  Saver's  li.  224,  Kirk- 
man  v  Bhawcross,  6  T.  it   14  Oppenheim  v.  Russel,  3  w<^  &  Pul   42 


THE    LAW    OF    LIEN.  100 

course  of  their  trade,  unless  there  be  an  express 
agreement  for  it.(6) 

(b)  Green  v.  Farmer,  4  Burr.  2214. 1  Bla.  H.  651.  S.  C.  Close  v.  Water 
house,  6  East  523.  in  notis.     In  the  cases  of  Mitford  v.  Vaughan,  6 
East.  523.  note  e.  and  Rushforthv.  Hadfield,  6  East.  523.  it  was  said  by 
the   court,  that  since  the  case  of  Green  v.  Farmer,  it  had  been  estab- 
lished, that  a  dyer  had  alien  for  his  general  balance.      But  the  onlj 
cases  which  I  can  find  subsequent  to  Green  v.  Farmer,  which  go  to 
establish  such  a  lien,  are  the  two  nisi  prius  decisions  of  Savill  v.  Bar- 
chard,  E.  41  G.  3.  A.  D.  1801.  4  Esp.  R.  53.  and  Humphreys  v.  Partridge, 
tried  before  Mr.  J.  Lawrence,  at  Gloucester  summer  assizes,  1803  ; 
cited  Montague,  B.  L.  Vol.4,  P.  xviii.  note  (a).      In  the  first  of  these 
cases  strong  evidence  being  given  of  the  usage  of  trade  in  favour  of 
such  lien,  Ld.  Kenyon  directed  the  jury,  if  they  thought  such  was  the 
general  practice  of  trade,  to  find  for  the  defendants,  (who  set  up  the 
lien  as  a  defence  in  action  of  trover,  for  a  quantity  of  baize  sent  them 
to  dye,)  and  the  jury  thereupon  found  a  verdict  for  them.     In  the  se- 
cond case  the  only  point  agitated  was  the  right  of  a  dyer  to  retain  for 
his  general  balance ;  and  nearly  all  the  dyers  in  Gloucestershire,  and 
some   from  other  counties  were  examined,  by  whose  evidence  Mr.  J. 
Lawrence  said,  he  thought  the  custom  was  proved,  and  (Green  v.  Far. 
mer,  Burr.  2211.  being  cited  on  the  other  side,)  observed  that  in  seve- 
ral subsequent  cases  the  custom  had  been  established.     And  the  dyers 
had  a  verdict.      But  in  Close  and  another  assignees  of  Riddel  v.  Wa- 
terhouse  and  others,  6  East  523.  note  (c),  which  was  trover  for  woollens 
delivered  by  the  bankrupt  before  his  bankruptcy,  to  the  defendants, 
who  were  dyers  at  Halifax,  to  be  dyed  ;  and  where  a  tender  had  been 
made  of  the  price  of  dying  the  particular  goods,  but  the  defendants 
claimed  to  retain  for  their  general  balance  for  the  expense  of  dying 
other    goods  on  the    ground  of  usage.     The  jury,   at  the  trial  before 
Rooke,  J.  at  the  York   assizes,  negatived  any  such  usage  at  Halifax, 
and  found  a  verdict  fur  the  plaintiffs:  and  on  motion  for  a  new  trial, 
Tr.  42  G.  3.  the  court  of  K.  B.   finally  discharged  the  rule,  being- of 
opinion  that  as  the  usage  was  negatived,  the   defendants  coidd  not  re- 
tain for  the  price  of  dying  any  other  than  the    particular  goods  dyed, 
or  at  most,  only  for  the  dying  of  such  goods  as  were  delivered  to  them 
at  one  and  the  same  time,  under  one  entire  contract,  and  that  at  any 
rate,  the  circumstance  of  the  defendants  having  had  different  parcels 
of  goods  in  their  hands  at  one  time,  which  had  been  delivered  at  se- 
veral time?.,  did  not  give  them  a  lien  on  the  goods  in  question  remain 


*J01  THE    LAW    OK    LIEN. 

*Where  however  the  dyers,  dressers,  whitsters, 
102  printers  and  calenderers  of  Manchester  "'and  the 
neighbourhood,  had  published  resolutions  agreed- 
upon  among  themselves  at  a  public  meeting,  that 
they  would  not  receive  any  more  goods  for  the 
execution  of  the  several  purposes  of  their  trades 
upon  them,  but  on  condition  that  they  respectively 
should  have  a  lien  on  such  goods  for  their  general 
balance :  the  court  of  King's  Bench  held  this 
agreement  to.be  good  in  law,  because  it  was  at 
the  option  of  those  who  made  it,  to  receive  goods 
or  not ;  and  that  any  one,  who  after  notice  of  it 
delivered  goods  to  any  of  those  manufacturers, 
must  be  taken  to  have  assented  to  the  terms  of  it, 
and  consequently  could  not  demand  the  goods  so 
delivered,  without  first  paying  the  balance  of  their 
general  account.(c) 


Lien  of  Factor  or  Broker* 

factors  have  always,  it  seems,  been  entitled  to 

a  particular  lien  upon  the  goods  of  their  principal 

103    coming  into  their  possession  *in  the  course  of  their 

trade,  for  the  charges  incident  to  those  particular 

th(  ir  hands,  for  the  pilcc  of  dying1  such  other  distinct  parcels,  us 
a  >■'.  .1  to  the  owner. 

Sha>  l  rass,  6T.  R.  1 !.  and  see  Clarke  v.  Cray,  4Esp 
R    178 


THE    LAW    OF    LIEK".  103 

goods.fd)  And  since  the  case  Kruger  v.  Wilcox,(e) 
Ambl.  252.  A.  D.  1755.  their  right  to  a  general  lien 
has  been  established  upon  the  same  principle,  that 
general  liens  have  been  admitted  in  other  cases  by 
general  usage  of  trade.  And  wherever  there  is  a 
course  of  dealings,  and  a  general  account  between 
the  principal  and  factor,  and  a  balance  is  due  to 
the  factor,  he  has  a  lien  upon  all  goods  of  the 
principal  in  his  hands,  in  the  character  of  factor  for 
such  balance,  without  regard  to  the  time  when,  or 
to  the  account  upon  which  he  received  them.(f) 
He  has  this  lien  too,  not  only  for  money  actually 
advanced  to  his  principal,  but  also  for  a  debt  for 
which  he  is  *only  a  surety  for  him  ;  and  although  *  104 
he  does  not  pay  the  debt  until  after  the  bankruptcy 
of  the  principal,  provided  the  delivery  of  the  pro- 
perty and  his  becoming  surety  took  place  before 
it(g)  For  the  lien  attaches  upon  his  becoming- 
surety,  which  is  the  same  thing  as  if  he  lent  him 
the  money. 

The  case,  indeed,  of  a  factor  is  that  in  which 


(J)  In  common  with  other  trades,  ante,  Chap.  2.  a  factor  may  dc 
tain  goods  to  pay  customs  in  any  plaee,  or  for  salvage,  2  Atk.  623.  and 
see  Wiseman  v.  Vandeput,  2  Vera.  203. 

(e)  It  was  doubtful  before  that  case  whether  a  factor  could  retain  for 
the  general  balance  of  his  account,  per  Ld.  Mansfield,  4  Burr.  2218. 

(/)  Kruger  v.  Wilcox,  Ambl.  252.  Gardiner  v.  Coleman,  S.  C.  cited 

1  Burr.  494.  Ex  parte  Emery,  2  Ves.  674.     Godin  v.  London  Assurance 
Company,  1  Burr.  494.  Green  v.  Farmer,  4  Burr.  2214.  Zinck  v.  Walker, 

2  Bla.  1154.    Hollingsworth  v.  Tooke,  2  H.  Bla.  501.  Walker  v.  Birch. 
6  T.  R.  262.  and  see  6  East  25.  in  notis. 

(g)  Drinkwater  v.  Goodwin,  Cowp.  251.  Hammonds  v  Barclay,  "' 
East,  2'.1.". 


J 04  THE    LAW    OF    LIKiN. 

for  the  convenience  of  trade,  from  the  nature  of  his 
employment,  and  with  a  view  to  encourage  him  to 
advance  money  upon  goods  in  his  possession,  or 
which  are  to  be  consigned  to  him,(h)  the  right  of 
lien  appears  to  have  been  most  favoured,  and  car- 
ried to  the  greatest  extent.  For  it  has  been  de- 
termined, that  where  a  factor  sells  goods  under  a 
del  credere  commission,  whereby  he  becomes  res- 
ponsible for  the  price,  or  where  he  is  in  advance 
for  goods  by  actual  payment,  he  has  a  lien  on  the 
price  in  the  hands  of  the  purchasers,  though  he  has 
parted  with  possession  of  the  goods ;  because 
though  he  has  not  the  actual  possession  of  the 
goods,  yet  as  he  has  the  powerof  giving  a  discharge, 
105  or  ^bringing  an  action,  he  has  a  right  to  retain  the 
money  in  consequence  of  his  lien,  as  much  as  a 
mortgagee  has  by  the  title  deeds  of  an  estate  in  his 
hands,  though  he  is  not  in  possession.(/J  Nor  will 
this  lien  be  defeated  by  proof  that  the  factor  knew 
at  the  time  when  he  advanced  the  money  to  his 
principal,  that  the  latter  was  in  insolvent  circum- 
$tances.(&) 

And  if  a  factor  effect  an  insurance  for  his  princi- 
pal,  and  the  principal  be  indebted  to  the  factor  on 
the  balance  of  account,  he  may  retain  the  policy, 
and  has  a  lien  upon  it  while  it  remains  in  his  pos- 
session, and  the  balance  remains  unpaid.  And 
where  the   consignor  of  a   cargo  of  goods  directs 


I  Bos.  &  Pal.  488,  9. 
.)  Drlnkwater  v.  Goodwin,   Cowp.  251. 
I    \ croft  v.  Devonshire,  2  Barr.  981 


THE  LAW  OF  LIEN.  106 

i 

his  factor  to  make  an  insurance  upon  it,  and  after- 
wards assigns  both  the  cargo  and  the  policy  of  in- 
surance by  an  indorsement  of  the  bill  of  lading,  the 
assignee  takes  the  policy  subject  to  the  lien  of  the 
factor  for  the  general  balance  of  his  account  with 
the  consignor,  and  must  pay  that  balance  before  he 
can  oblige  the  factor  to  deliver  up  the  policy.(7) 
And  though  the  policy  never  come  into  the  actual 
possession  of  the  factor  himself  in  such  a  case,  but 
remain  *in  the  hands  of  the  broker  who  effected  the  *  106 
insurance  for  the  factor  ;  the  latter  will  still  have  a 
lien  upon  the  money  received  upon  the  policy  by 
the  broker  ;  who  will  be  entitled  to  retain  it  against 
the  assignee,  as  the  servant  of  the  factor ;  the  pos- 
session of  the  broker  being  considered  in  effect  the 
same  as  that  of  the  factor.(mJ 

If  the  principal  die  before  the  consignment,  on 
the  faith  of  which  the  factor  has  advanced  money, 
or  accepted  bills,  come  into  the  hands  of  the  latter : 
and  the  executors  of  the  principal,  by  any  conduct 
of  theirs,  confirm  the  original  destination  of  the 
goods,  and  the  authority  of  the  factor,  he  will  be 
entitled  to  the  same  lien  as  if  the  principal  had 
lived.  Thus  where  a  principal  gave  notice  to  a 
factor  of  an  intended  consignment  of  a  ship  to 
him,  for  the  purpose  of  sale,  and  in  consequence 
drew  bills  on  him,  which  the  factor  accepted  on 
the  credit  of  the  consignment ;  after  which  the 
principal  died,  but  his  executors  directed  the  cap- 


(l)  Godin  v.  London  Ass.  Co.  1.  Burr.  494 
<W>  Man  v.  Shiffner,  2  East,  523. 


106  THE    LAW    OF    LIEN. 

tain  of  the  ship  to  follow  his  former  orders,  and 
wrote  to  the  factor,  communicating  the  death  oi 
the  principal  and  their  appointment  as  executors, 
ordering  him  at  the  same  time  to  have  the  policy 
'•'  107  "on  a  part  of  the  cargo  cancelled  ;  after  which  the 
ship  arrived,  and  was  delivered  by  the  captain  into 
the  possession  of  the  factor,  who  sold  it :  it  was 
determined,  that  even  if  the  death  of  the  principal 
could  be  considered  to  operate  as  a  revocation  of 
the  factor's  authority,  so-  as  to  prevent  him  from 
haying  a  lien  on  the  proceeds  of  the  ship,  yet  the 
subsequent  conduct  of  the  executors  was  a  suffici- 
ent affirmation  of  the  factor's  authority,  and  he  was 
therefore  entitled  to  a  lien  upon  the  proceeds,  not 
only  for  the  amount  of  money  disbursed  by  him 
for  the  necessary  use  of  the  ship  on  its  arrival,  and 
for  the  acceptances  by  him  actually  paid,  but  also 
for  the  amount  of  his  outstanding  acceptances  not 
then  &ue.(n) 
Whena       ].But   where  a  factor  advanced  money  to  his 

•actor  II'  • 

hai  no  principal,  who  was  a  clothier,  relying  on  the  credit 
of  his  cloths  remaining  in  his  hands  to  reimburse 
himself,  and  the  clothier  died,  and  upon  his  admi- 
nistrator slim;;'  at  law  for  the  cloth,  the  factor  came 
into  equity,  an  I  prayed  he  might  be  allowed  an  ac- 
count of  the  monies  he  had  advanced,  it  was  re- 
refused  :  because  if  there  were  debts  of  an  higher 
'  108  nature,  il  would  have  been  a  ^'devastavit  in  the  ad- 
ministrator to  pay  the  factor's  debt.(o) 

(„)  Hanii    >nds  v.  Barclay,  2  East,  2-27 
(o)  (  t.  Derby,  2  V<       117 


THE    LAW   OF    LTEA.  108 

2.  Though  it  is  a  general  rule  of  law,  that  a  fac-  ,  where 

°  °  '  there  is 

tor  has  alien  upon  all  goods  consigned  to  him  by  a  special 
his  principal  for  sale  :  yet  if  goods  are  deposited  ment." 
with  him  for  that  purpose,  and  there  be  a  special 
agreement  between  him  and  his  principal,  that  he 
shall  pay  over  the  proceeds  when  the  sale  is  effect- 
ed, he  will  have  no  lien  upon  those  goods,  if  not 
sold,  for  the  balance  of  his  general  account  accru- 
ing upon  other  articles  :  the  express  stipulation  in 
this  case  preventing  the  application  of  the  general 
rule  of  \si\\-.(p)     And  though  a  factor  has   a  lien 
upon  the  proceeds  of  goods  sold  for  his  principal, 
where  he  is  in  actual  advance  to  him,  yet  if  he  en- 
ters into  a  special  agreement  with  his  principal  for 
a  particular  mode  of  payment,^)  or  have  notice  of 
a  special  agreement  between  his    principal  and  a 
third  person  as  to  the  application  of  the  money 
produced  by  the  goods  ;  he  shall  in  neither  of  these 
cases  be  entitled  to  a  lien  on  that  money.     Ac- 
cordingly, *where  a  factor  made  a  general  accept-  *  109 
ance  of  a  bill  drawn  upon  him  by  his  principal, 
payable  out  of  the  produce  of  goods  in  his  hands 
after  discharging  prior  acceptances,   and  upon  the 
principal  becoming  bankrupt,  the  payee  brought 
an  action  for  money  had  and  received  against  the 
factor  :  it  was  holden,  that  having  accepted  the  bill 
generally,  he  could  not  refuse  to  pay  it  on  account 
of  the  balance  due  to  him  ;  and  that  if  he  meant 
to  reserve  his  own  balance,  he  should  have  made  a 

(/»)  Walker  v.  Birch,  6  T.  R.  258. 
""    Per  T.il  Eldon,  Cowell  v.  Simpson,  16  Ves.  jun.  28Q, 
b°> 


109  THE  LAW  OF  LlEiN. 

special  acceptance.^  So,  too,  where  A.  agreed 
to  sell  goods  to  B.  to  be  accounted  for  by  the  lat- 
ter in  part  as  a  satisfaction  of  a  demand  which  he 
had  upon  the  former,  and  C.  with  notice  of  this 
agreement  undertook  to  sell  the  goods  as  factor ;  it 
was  determined  that  he  could  not  retain  the  pro- 
duce for  a  general  balance  due  to  him  from  A.(s) 

3.  A  factor  has  no  lien  on  the  goods  of  his  prin- 
cipal for  debts  which  accrued  before  his  character 
of  factor  commenced.  Accordingly,  where  a  ba- 
lance was  due  from  a  principal  to  his  factor  for 
goods  sold  by  the  latter  in  his  own  name  to  the 
former,  before  the  relation  of  principal  and  factor 

1 1G  Existed  between  them,  and  on  account  of  another 
employer,  it  was  decided,  that  the  factor  could  not 
en  account  of  such  balance  retain  goods  which, 
had  been  placed  in  his  hands  by  the  principal  and 
factor  commenced  between  them.(tf) 

4.  A  factor  can  acquire  no  lien  on  goods  which 
have  been  consigned  to  him  after  the  commission 
of  an  open(?/J  act  of  bankruptcy  by  the  consignor, 
though  the  factor  have  advanced  money  on  the 


i     Vlabar  v.  Massias,  2  Bla.  R.  1072. 
)  VVeymouth  v.  Boyer  5  Ves.  jun.  416. 
,  Houghton  v.  Matthews,  3  Bos.  8c  Pul.  485. 

Si  cording  to  the  decisions  of  Copland  v.  Stein,  the  factor  could 

■  equiri   a   lien  upon  goods  consigned  to  him,  even  after  the  conv 

m  <>f  a.  secret  &c\  of  bankruptcy  by  the  consignor  :  and  as  the  law 

then  slood  no  contracl  made  by  a  bankrupt  after  the  act  of  bankruptcy 

secret,  was  valid  against  the  assignees,  except  in  the 

epted  by  1  Jac  1.  c  15.  s.  14.  21  Jac.  1.  c.  19.  s  14.  and 

0.  -.  c.  ;>2  s.  1.     Hut  the  law  upon  this  subject  is  very  inateviallv- 

•  -I  by  16  vco.  3.  c    135.  s    1  ante  Chap   I  '• 


TE    LAW   OF  LIEN.  110 

credit  of  the  consignment,  the  legal  effect  of  such 
act  being  to  enable  the  assignees  to  rescind  all 
contracts  made  by  the  bankrupt  after  the  commis- 
sion of  it,  except  in  particular  cases  provided  for 
fey  statutes,  within  the  provisions  of  which  this  case 
is  not  comprehended.faj 

*5.  According  to  the  general  rule  of  law  with  *  1 1  ] 
sespect  to  liens  where  the  goods  of  the  principal  do 
not  come  into  the  actual  possession  of  the  factor, 
he  can  acquire  no  lien  upon  them,  even  though  he 
has  accepted  bills  upon  the  faith  of  the  consign- 
ment, and  has  paid  part  of  the  freight. (y)  Thus 
in  the  case  of  Kinlock  v.  Craig,  where  the  factor 
had  accepted  bills  drawn  on  him  by  the  principal, 
on  the  faith  of  consignments  agreed  to  be  made  by 
the  principal  to  the  factor,  and  both  of  them  be- 
came bankrupts  before  a  cargo  consigned  came 
into  the  actual  possession  of  the  factor,  who,  after 
he  had  stopped  payment,  at  first  refused  to  accept 
the  goods,  but  afterwards,  and  before  he  had  com- 
mitted any  act  of  bankruptcy,  paid  part  of  the 
freight :  it  was  determined  that  his  assignees  had 
no  property  in  the  cargo,  and  could  not  recover  the 
produce  of  it  from  the  assignees  of  the  principal : 
they  having  sold  it  and  received  the  purchase 
money. 

6.  As  by  the  general  rule  of  law  that  liens  can  - 
not  exist  without  possession,  the  lien  of  a  factor 
cannot  attach  on  goods  which  do  not  come  into  br?: 

(x)  Copland  v.  Stein,  8  T.  R.  199. 

(y)  Kinlock  v.  Craig-,  3  T.  R.  119,  783.  4  Bfro  P  C  S-  C 


Ill  ITJE  LAW   OF  LIEJS. 


possession :  so  in  conformity  to  the  same  rule,  hts 
1 12  lien  *cannot  continue  on  the  goods,  so  as  to  enable 
him  to  maintain  trover  for  them  at  law,  after  he  has 
parted  with  possession  of  them  to  his  princi- 
pal.^) 


113  *Lien  of  Farrier. 

As  a  farrier  is  from  the  nature  of  his  employ- 
ment (which  is  one  of  those,  the  exercise  of  which 
the  law  considers  necessary  to  public  convenience,) 
under  a  legal  obligation  to  shoe  the  horse  of  any 
one  who  requires  him  so  to  do,  if  he  has  sufficient 
materials  for  the  purpose,  and  an  adequate  reward 

(r)  Kruger  v.  Wilcox,  Ambl.  252.  Godin  v.  London  Ass.  Co  Burr. 
494.  Per  Buller,  J.  6  East,  25,  in  notis.  The  decision  of  Lord  Hard- 
wicke  in  Snee  v.  Prescott,  1  Atk.  2-15,  may  appeal'  to  be  at  variance 
with  this  rule ;  but  from  the  statement  and  explanation  of  that  case 
given  by  Buller  in  Lickbarrow  v.  Mason,  6  East,  25  in  notis,  it  appears 
to  have  turned  chiefly  upon  the  different  notions  entertained  at  that 
time  as  to  what  constituted  a  transfer  of  the  property,  rather  than 
upon  any  difference  of  opinion  with  respect  to  the  non-continuance  of 
the  common  law  lien,  after  the  possession  of  the  property  had  been 
once  clearly  relinquished.  In  equity,  however,  the  goods  may  in  some 
cases  be  followed,  and  a  specific  lien  is  allowed  to  remain  on  them  for 
the  charges  which  the  factor  has  incurred  in  respect  of  them,  after 
they  have  come  into  the  possession  of  the  principal;  see  Kruger  v 
Wilcox,  Ambl.  252  Thus  where  a  factor  purchased  goods  for  his 
principal,  and  paid  the  vendee  for  them,  and  sent  them  to  his  princb 
pal,  and  then  drew  a  bill  of  exchange  on  the  latter  for  the  amount: 
which  was  Bent  hack  protested,  (the  principal  having,  after  the  re- 
ceipt of  the  goods,  In.  ©me  bankrupt,)  it  was  holden  to  be  a  specific 
lien  on  the  goods,  and  not  suffered  to  go  for  other  debts,  until  the 
price  of  ill' in  was  paid,    Exparte  Emery,  2  Ves.  674. 


THE  LAW  OF  LIEN.  113 

is  offered  to  him.(a)  He  is  in  recompense  for  this 
obligation  entitled  to  a  lien  upon  the  horse  for  the 
price  of  his  shoeing  ;  and  unless  that  price  is  ten- 
dered or  paid,  an  action  of  trover  will  not  lie  against 
him  for  refusing  to  deliver  the  horse.(6) 

Whether  a  farrier  may  detain  a  horse  for  the 
trouble  and  expense  of  curing  it  of  any  disorder 
and  keeping  it  during  the  cure,  has  never  been  de- 
cided ;  but  if  the  rule  laid  down  in  the  cases  ex 
parte  Deeze,  and  ex  parte  Ockenclen  be  law,  that 
every  ^tradesman  has  a  lien  upon  property  entrust-   *  114 
ed  to  him  in  the  course  of  his  trade,  for  the  trouble 
or  expense  he  may  have  incurred  in  the  execution 
of  the  purpose  for   which  it  was   entrusted  ;  it 
should  seem,  that  a  farrier  is  entitled  to  a  lien,  as 
well  for  the  curing  and  keeping,  as  for  the  shoeing 
the  horse.     If,  however,  the  farrier  enter  into  a 
special  agreement  for  the  payment  of  a  specific  or 
a  reasonable  sum  for  the  cure  and  keep  of  the 
horse,  he  certainly  will  have  no  lien  upon  it,  such 
an  agreement  being  a  complete  waiver  of  the  right, 
if  he  was  legally  entitled  to  itfc) 

(a)  21  H.  6.  55,56.  Keilwood,  5a  Lane  v.  Cotton,  1  Ld.  Bayra.654- 
S.  C  12  Mod.  484.  11  Mod.  16.  1  Salk.  18. 

(6)  Bac.  Ab.  Trover,  (E)  p  694.  But  see  judgment  of  Lord  Ellen. 
lorough,  Rushfortli  v.  Hadfield,  7  East,  229.  Ld.  Ellenborough  appears, 
however,  to  be  speaking  only  of  general  liens. 

(c)  Brennan  v.  (Bifrfirt,  Sav.  224.    Sehv,  N".  P  1289    and  see  ante, 

t  * 


1 14  THE  LAW  OF  LIEiS; 


Lien  of  Fuller, 


It  has  never  been  specifically^^  decided  that 
fullers  in  general  have  any  sort  of  lien.  But  it  ap- 
pears that  by  the  particular  custom  of  the  city  of 
Exeter,  they  have  there  a  lien  upon  cloth  deliver- 
*  1 15  ed  to  them  to  be  *fulled,  not  only  for  the  work  done 
upon  the  same  cloth,  but  for  a  general  balance  due 
from  the  owner  in  the  course  of  trade. (e) 


Lien  of  Innkeeper. 

The  common  law  of  England  having  considered 
it  necessary  to  public  convenience,  that  every  per- 
son who  undertakes  to  keep  a  common  inn,(«) 
should  be  under  an  obligation  to  receive  and  afford 
proper  entertainment  to  every  one  who  offers  him- 
116    self  as  a  guest,{7>)  if  there  be  ^sufficient  room  for 

(d)  According-  to  the  rule  laid  down  ex  parte  Deeze,  1  Atk.  228.  all 
tradesmen  have  a  particular  lien. 

(e)  Sweet  v.  Pym,  1  East,  4. 

((()  A  person  who  takes  in  lodgers  to  lodge  and  board  in  his  house.. 
andleta  out  stables,  is  not  an  innkeeper.  Parkhurst  v.  Foster,  1  Salk. 
387.  But  it  is  not  necessary,  to  constitute  a  common  inn,  that  there 
should  be  a  sign  before  tlie  door  of  the  bouse.   Dalt.  c.  7. 

(/,)  Y.  R.  .5  Ed.  4.  fol.  2.  22  Ed.  4.  fol  19.  S.  P.  Keilw.  50.  Lane  v. 
Cotton,  12  Mod.  484.  1  Ld.  Raym.  653.  &  C  Yorke  v  C.renaugh,  Ld- 
Raym.  866.  Balk.  888.  8.  C.  Kirkman  v.  ShaWcross,  6  T.  R.  U.  Naylorv. 
Mangles,  1  Esp.  It.  109.  Fortcscue  de  Laud.  82.  in  notis.  3  Bla.  Com. 
165.  Rul.  N.  P  45.  If  one  who  keeps  a  common  inn,  refuse  either  to 
receive  a  traveller  as   a  guest  Into  his  house,  or  to  provide  him  with 


XHE    LAW    OF    LIEN.  116 

him  in  the  inn,(c)  and  no  good  reason  for  refusing 
him  ;f  d)  has  in  compensation^  f<^  the  burden 
which  *it  has  thus  imposed,  allowed  the  innkeeper    *  117 
the  privilege  of  detaining  the  person  of  the  guest 
himself,(/)  and,  it  seems,  his  goods,(gJ  until  he 

victuals  and  lodging  upon  his  tendering  him  a  reasonable  price  for  the 
same,  he  is  not  only  liable  to  an  action  on  the  case  at  the  suit  of  the 
party  grieved,  but  may  also  be  indicted  and  fined  at  the  suit  of  the 
king.  1  Hawk.  225.  It  is  said  too,  that  he  may  be  compelled  by  the 
constable  of  the  town,  or  by  a  justice  of  the  peace  to  receive  and  en- 
tertain such  person.  Dalt.  c.  7.  Burn's  Justice,  tit.  Alehouses,  and  see 
Y.  B.  5  Ed.  4.  fol.  2. 

(c)  1  Ld.  Raym.  654.  Bennett  v.  Mellor,  5  T.  R.  275. 

(d)  1  Ventr.  33S.  3  Bla.  Com.  165. 

(e)  Yorke  v.  Grenaugh,  Ld.  Raym.  866.  Naylor  v.  Mangles,  1  Esp.  R. 
109.  Other  reasons  have  been  assigned  as  the  ground  of  the  inn- 
keeper's lien  by  the  common  law.  In  the  case  of  Jones  v.  Thurlow,  8 
Mod.  172.  the  court  said  this  custom  was  founded  on  the  hardship  of 
the  innkeeper's  case  to  sue  for  every  little  debt,  or  the  greater  hard- 
ship that  he  may  not  know  where  to  find  him  that  was  his  guest  after 
he  is  gone.  In  Bac.  Ab.  tit.  Inns,  the  reason  given  for  the  innkeeper's 
power  of  draining  without  a  special  agreement  for  that  purpose  is. 
♦batmen  who  get  their  livelihood  by  the  entertainment  of  others,  can- 
not annex  such  a  disobliging  condition  that  they  shall  retain  the  party's 
property  in  case  of  nonpayment,  nor  make  so  disadvantageous  and  im- 
prudent a  supposition,  as  that  they  shall  not  be  paid.  But  the  reason 
given  by  Ld.  Holt  in  the  case  of  Yorke  v.  Grenaugh,  and  by  Ld.  Ken- 
yon  in  Naylor  v.  Mangles,  and  which  I  have  adopted  in  the  text,  appears 
to  be  the  only  true  and  original  foundation  of  the  innkeeper's  lien. 
For  there  would  be  no  great  hardship  in  being  obliged  to  rely  on  the 
credit  of  his  guest,  if  he  was  not  likewise  obliged  to  receive  and  en- 
tertain him. 

(/)  Forteseue  de  Laud.  p.  82.  Bac.  Ab.  tit.  Inns.  Burn's  Just,  tit 
Alehouses. 

(g)  Forteseue  de  Laud.  82.  n.  b.  Hawk.  V.  C.  B.  1.  c.  78.  s.  8.  c.  80 
s.  6.  Cro.  Jac.  609.  Yorke  v.  Grindstone,  1  Salk.  388.  Wood  C.  L.  529. 
Dalt.  p.  3.  and  see  11  Sc  12  W.  3.  c.  15.  s.  2.  I  have  said  it  seems,  be- 
cause there  are  some  authorities  to  the  contrary,  see  1-Bulst.  207.  Bac 
Ab.  tit  Inns.  Burn's  Just,  title  Alehouses.  The  weight  of  authority 
appears,  however,  to  be  clearly  on  the  affirmative  side  ;  and  from  the 


117  THE  LAW  OF  LIEN. 

has  discharged  the  expense  of  his  own  lodging  and 
faod,  and  his  horse,  until  he  has  paid  for  its  pro- 
vender and  stabling.(A)  And  the  mere  act  of  leav- 
ing the  horse  in  the  stable  of  the  inn  is  sufficient  to 
constitute  the  person  leaving  it  a  guest ;  because 
the  innkeeper  derives  a  profit  from  the  meat  con- 
sumed by  the  horse.(i)  And  it  is  not  necessary  in 
order  to  entitle  the  innkeeper  to  exercise  this  right 
*118  of  detainer,  that  he  should  make  *a  previous  de- 
mand of  payment.(/c)  Nor  will  the  want  of  title  in 
the  guest  deprive  the  innkeeper  of  his  lien  upon 
the  horse  ;  for  the  obvious  reason  that  he  is  obliged 
to  receive  it  from  the  guest  without  enquiring  into 
his  title.  And,  therefore,  though  it  should  be  prov- 
ed to  have  been  stolen  by  the  person  who  left  it, 
the  innkeeper  Avill  still  be  entitled  to  retain  it 
against  the  real  owner,  until  its  keep  is  paid 
for.(Z) 

But  the  lien  to  which  the  inkeeper  is  thus  en- 
titled  by  the  common  law,  is  only  a  particular  lien 
upon  the  thing  itself  in  respect  of  which  the  debt 
is  incurred  ;  and,  therefore,  an  horse  committed  t© 
an  innkeeper  can  be  detained  only  for  its  own  meat, 

words  of  the  statute  11  and  12  W.  3.  c.  15.  s.  2.  the  legislature  seems  to 
have  been  of  that  opinion. 

(//)  Y.  B.  5  Ed.  4.  fol.  2.  Yelv.  67.  ami  see  Robinson  v.  Walter,  3 
Bulstr.  268.  Yorlce  v.  Oeenaup:h,  Ld.  Raym.  866.  Jones  v.  Thurlow,  8 
Mod.  172.  Ex  parte  Ocltenden,  lAtk. 286  Fortescue  de  Laud. p.  82 
note(b.)  Bui  X.  P. 48. 

(,)  Lane  v.  Cotton,    12  Mod.  484.  York  v.  Grindstone,  1  Salic.  38P  - 
Holt,  ('!).  J.  dissentient.'. 

(fr)  Yorke  v.  Grenaugh,  Ld  Ravin.  867.  Salk  088.  S  6. 
\ni-  note  (fc). 


THE    LAW    OF    LIEN.  118 

and  not  for  a  debt  previously  incurred  by  the  owner 
for  the  meat  of  any  other  horse.  The  chattels  in 
such  case  being  in  the  custody  of  the  law  for  the 
debt  which  arises  from  the  thing  itself,  and  not  for 
any  other  debt  due  from  the  same  party  ;  for  the 
law  is  open  for  all  such  debts,  and  does  not  permit 
private  persons  to  make  reprisals.fmj 

*And  if  the  innkeeper,  waiving  the  privilege  *  1 19 
which  the  law  allows  him,  give  the  guest  credit, 
and  suffer  him  and  his  horse  to  depart  without  pay- 
ment, he  can  never  afterwards  detain  either  guest 
or  horse  on  the  same  account,  and  will  have  no 
other  remedy  but  his  action  at  law.(w)  Or,  if  the 
innkeeper  make  a  special  agreement  with  the  guest 
for  payment,  it  will  be  considered  as  a  waiver  of 
his  lien,  and  his  only  remedy  will  be  to  sue  upon 
the  agree ment.(o) 

If  the  owner  neglects  or  refuses  to  redeem  a 
horse  detained,  the  innkeeper  cannot  sell(p)  or 
use(q)  it  ('though  it  should  have  consumed  double 

(m)  1  Bulstr.  207.  Bac.  Ab.  tit.  Inns.    Burn's  Just,  title  Alehouses. 

(«)  Jones  v.  Thurlow,  8  Mod.  172.  Warbrook  v.  Griffin,  2  Brownl, 
254.  Jones  v.  Pearle,  1  Str.  557-  Per  Buller,  J.  Lickbarrow  v.  Mason,  6 
East,  25.  in  notis. 

(o)  Y.  B.  5  Ed.  fol.  2.  Yelv.  67. 

(/»)  Jones  v.  Thurlow*  8  Mod.  172.  Jones  v.  Pearle,  1  Str.  556.  Sel 
Ca.  125  This  point  seems  to  be  decided  by  the  case  of  Jones  v.  Pearle. 
but  the  contrary  was  formerly  hold  en  to  be  law;  see  Case  de  Hoteler, 
Yelv.  67-  Where  it  was  laid  down  by  Popham,  Ch.  J.  and  agreed  to  by 
the  whole  court,  that  the  horse  might  be  sold  when  he  had  eat  out  his 
value  upon  a  reasonable  appraisement,  if  there  was  no  special 
agreement. 

(g)  Bac.  Ab.  title  Inns.    Burn's  Just.  tit.  Alehouse 

14 


120 


119  THE    LAW   OP    LIEN. 

t 

its  value)  by  the  general  custom  of  the  realm.  But 
by  the  particular  customs  of  London  and  Exeter, 
when  such  *horse  has  eat  out  its  price,  the  inn- 
keeper may  upon  the  reasonable  appraisement  of 
four  of  his  neighbours  sell  it,  or  take  it  as  his 
own.(r) 

The  same  regard  to  the  proper  accommodation 
of  travellers  which  gave  rise  to  the  obligations  un- 
der which  innkeepers  are  placed  by  the  common 
law,  partly  induced  the  legislature  in  some  mea- 
sure to  restrict  the  lien,  which  that  law  has  given 
them,  by  11  &  12  W.  3.  c.  15.  s.  2.  by  which  it  is 
enacted,  "  that  if  any  innkeeper  or  alehousekeeper 
shall  sell  any  ale  or  beer  in  any  vessel  not  signed, 
stamped,  or  marked  according  to  the  provisions  of 
the  preceding  section  of  that  act,  to  any  traveller 
or  other  person,  or  if  in  giving  any  account  or 
reckoning  in  writing,  or  otherwise,  such  innkeeper 
or  alehousekeeper  shall  refuse  to  give  in  the  par- 
ticular number  of  quarts  or  pints  of  ale  or  beer  for 
which  the  demand  is  made  on  such  account  :  it 
shall  not  be  lawful  for  any  such  innkeeper  or  ale- 
housekeeper for  default  of  payment  of  such  reck- 
oning to  detain  any  goods,  or  other  things  belong- 
ing to  the  person  from  whom  such  reckoning  shall 
*  121  be  due,  *but  he  shall  be  left  to  his  action  at  law  for 
the  same,  any  custom  or  usage  for  the  same  to  the 
contrary  in  any  v\ise  notwithstanding." 

■   \|..  end,  3  Bnlstr.  2T1.  Bac.  Abr.  tit.  Inns. 


THE    LAW    OF    LIEN.  121 


Lien  of  Insurance  Broker. 

Insurance  brokers  have  a  lien  upon  the  policies 
of  their  employers  in  their  hands,  and  upon  the 
money  received  by  them  upon  those  policies,  not 
only  for  the  amount  of  their  commission  and  the 
premiums  of  the  policies  themselves,  but  also  for  a 
general  balance  due  from  their  employers.(a) 

And  if  the  possession  of  the  policy  be  relinquished 
to  the  principal,  and  again  obtained  from  him  by 
the  broker  under  pretence  of  receiving  the  mono 
from  the  underwriters,  but  really  with  a  view  to 
hold  it  as  a  security,  his  lien  upon  it  will  revive, 
though  the  loss  be  not  adjusted  by  him,  until  after 
the  bankruptcy  of  his  employer ;  provided  the  pos- 
session of  it  be  regained  before  that  event  has 
taken  place.(6)  He  will  also  be  entitled  to  the 
*same  lien  upon  the  money  received  upon  an  in-  *ro9 
surance  effected  by  order  of  his  principal  before 
the  bankruptcy  of  the  latter,  though  the  loss  do 
not  happen  until  after  it.(c) 

But  if  an  agent  employ  an  insurance  broker  to 
effect  an  insurance  for  his  principal,  and  the  bro- 
ker know  that  it  is  for  the  principal,  he  can  upon 
the  bankruptcy  of  the  agent  have  a  lien  upon  the 
policy  in  his  hands  only  for  the  amount  of  the 

(a)  Whitehead  v.  Vaughan,  Co.  B.  L.  566.  Parker  v.  Carter,  Co.  B.  L. 
567. 

(b)  Whitehead  v.  Vaaghan,  Co.  B.  L.  566, 

(c)  Parker  v.  Carter,  Co.  B.  L.  567 


122  THE    LAW   OF    LIEN. 

premium  and  commission  upon  the  same,  and  not 
for  a  general  balance  due  to  him  from  the  agent  ;(d) 
though  a  larger  balance  is  due  from  the  principal 
to  the  agent,  and  the  former  has  not  paid  the  latter 
any  thing  for  getting  the  policy  effected.fej  And 
if  an  agent,  without  naming  his  principal,  effect  an 
insurance  in  his  own  name  with  his  usual  broker, 
but  inform  the  broker  that  the  property  is  neutral, 
and  warranted  to  be  so,  such  information  will  be 
sufficient  notice  to  the  broker,  that  the  insurance 
is  not  on  account  of  the  agent,  to  deprive  the  for- 
mer upon  bankruptcy  of  the  agent  of  any  lien  upon 
*  123  *the  policy  for  a  general  balance  due  from  such 
agent.(/) 

These  cases,  it  should  be  observed,  deprives  the 
broker  of  his  general  lien  for  a  balance  due  from 
the  agent  only,  where  he  is  aware,  that  the  party 
with  whom  he  contracts  acts  merely  as  the  agent 
of  a  third  person.  But  the  case  of  Lanyon  v. 
Blanchard,  2  Camp.  R.  597.  goes  still  further,  and 
deprives  the  broker  of  his  general  lien,  though  he 
is  ignorant  of  the  relation  in  which  the  agent 
stands,  and  contracts  with  him  as  a  principal.  In 
that  case  where  an  agent  employed  to  effect  an  in- 
surance on  goods  represented  himself  to  the  insu- 
rance broker,  who  effected  the  insurance  for  him, 
as  the  owner  of  the  goods.  It  was  determined, 
that  the  insurance  broker  could  not  retain  the  po- 


(</)  Maans  v.  Henderson,  J  Last,  335.  Man  v.  Shiflher,  2  East,  523. 
<r)  Snook  v.  Davidson,  2  Camp.  R.  218. 

'  f)  Maana  \    Hend m,  i  East,  335. 


THE    LAW    OF    LIEN.  123 

licy  against  the  principal  for  a  general  balance  due 
from  the  agent.(g) 

(,§-)  According  to  the  principle  of  George  v.  Clagget,  7  T.  R.  359.  if 
the  agent  act  under  a  del  credere  commission,  and  direct  policies  to  be 
effected  as  for  himself,  the  broker  would  be  entitled  to  retain  the  po- 
licy in  his  hands,  or  any  money  received  from  the  underwriters  upon 
it  for  the  general  balance  due  to  him  from  the  agent.     The  decision  of 
Rabone  v.  Williams,  cited  7  T.  R.  360.  carries  this  principle  still  fur- 
ther ;  for  it  does  not  appear  that  the  factor  in  that  case  acted  under  a 
del  credere  commission ;  and  Lord  Mansfield  said,  that  where  a  factor 
dealing  for  a  principal,  but  concealing  that  principal,  delivers  goods  in 
his  own  name,  the  person  contracting  with  him  has  a  right  to  consider 
him  to  all  intents  and  purposes  as  the  principal ;  and  though  the  real 
principal  may  appear  and  bring  an  action  upon  that  contract  against 
the  purchaser  of  the  goods,  yet  the  purchaser  may  set  off  any  claim 
lie  may  have  against  the  factor,  in  answer  to  the  demand  of  the  princi- 
pal.    In  the  case  of  Weldon  v.  Gould,  3  Esp.  R.  268.  it  was  decided  by 
Ld.  Kenyon,  Ch.  J.  upon  the  same  principle,  that  where  goods  were  in- 
trusted by  the  owner  to  another  person  in  order  to  have  them  printed 
and  that  person  delivered  them  to  a  calico  printer  as  his  own  for  that 
purpose,  the  calico  printer  might  retain  them  against  the  owner  for  a 
general  balance  due  from  the  person  who  delivered  them.     Upon  the 
principle  laid  down  in  these  cases,  it  seems  that  a  broker  should  have 
a  lien  upon  a  policy  which  he  has  effected  for  an  agent  who  conceal :. 
his  principal,  for  a  general  balance  due  from  that  agent.     The  case, 
however,  of  Lanyon  v.  Blanchard,  2  Cambp.  R.  597.  seems  to  contra- 
vene this  doctrine.     But  the  decisions  of  Richardson  v.  Goss,  3  Bos. 
&  Pul.  119.  and  Pulteney  v.  Keymer,  3  Esp    182.  only  cmalify  it,  and 
admit  that  where  money  has  been  advanced  to,  or  bills  have  been  ac- 
cepted for,  an  agent,  on  the  credit  of  a  delivery  or  consignment  of  bis 
principul's  property,  the  person  to  whom  such  delivery  or  consignment 
is  made,  will  have  a  lien  to  the  amount  of  the  money  so  advanced,  or 
bills  accepted,  against  the  principal,  if  that  person  was  ignorant,  at 
the  time  of  the  delivery  or  consignment,  that  the  property  belonged  to 
the  principal,  and  the  delivery  or  consignment  was  not  tortious  against 
the  latter. 


*I24  THE    LAW   OF    LIEN. 

*Lien  of  Miller. 

A  miller  has  a  particular  lien  upon  the  corn  ot 
125  his  employer  in  his  hands,  which  ^entitles  him  to 
retain  it  for  the  price  of  grinding  the  same.  But 
he  has  no  lien  upon  it  for  a  general  balance  due  to 
him  from  his  employer,  for  the  price  of  grind- 
ing other  corn.  Accordingly,  where  a  flour  factor 
employed  a  miller,  and  the  latter,  having  always  a 
large  quantity  of  corn  and  a  great  number  of  sacks 
belonging  to  the  flour  factor  in  his  hands,  trusted 
the  flour  factor  to  so  large  an  amount,  that  when  he 
became  a  bankrupt,  he  owed  the  miller  two  hun- 
dred and  eighty-six  pounds  for  grinding  done  be- 
fore, and  sixteen  for  grinding  corn  then  in  hand. 
The  miller  insisted  that  he  had  a  lien  upon  the  corn 
and  sacks  for  the  whole  debt :  but  Lord  Hardwicke 
held,  that  the  miller  having  given  no  evidence  of 
a  contract  for  a  specific  lien,  nor  for  a  lien  arising 
by  the  general  usage  of  trade,  could  retain  only 
for  the  price  of  grinding  the  corn  then  in  his 
hands.(e) 


*  126  *Lien  of  Packer. 

A  packer  has  a  lien  on  goods  in  his  hands  not 
jnly  for  the  price  of  packing  them,  but,  being  in 

(r)  Ex  parte  Ockenden,  1  Atk.  235.  and  see  1  Bla.  R.  653. 


THE  LAW  OF  LIEN.  126 

the  nature  of  a  factor,  is  also  by  the  usage  of  trade 
entitled  to  a  lien  on  them  for  a  general  balance 
due  to  him  from  his  employer// J  This  was  de- 
cided in  the  case  ex  parte  Deeze,  where  a  clothier 
having  borrowed  money,  on  a  note  of  hand  from  a 
packer,  but  at  a  time  when  he  had  no  dealings  with 
him  in  his  trade  of  packing,  afterwards  sent  him  in 
cloth  to  pack,  and  proof  being  adduced  that  it  was 
the  usage  for  packers  to  lend  money  to  clothiers  ; 
and  that  the  cloths  left  to  be  packed  were  consi- 
dered as  a  pledge  not  only  for  the  packing  but  for 
the  loan  of  money  likeivise ;  it  was  holden,  that  the 
packer  might  retain  the  cloth  for  the  money  lent  as 
well  as  for  the  price  of  packing. 


Lien  of  Paivnee. 

All  liens  which  are  created  by  a  deposit  *of  per-    *  127 
sonai  property  by  one  person  in  the  hands  of  ano- 
ther/^ under  an  express  or  implied  stipulation, 

(/)  Ex  parte  Deeze,  1  Atk.  228.  and  see  Green  v.  Farmer,  1  Bla.  R. 
651  4  Burr.  2222.  Savill  v.  Barchard,  4  Esp.  53.  S.  P.  and  ante,  Chap. 
UI.  p.  32.  n.(a) 

(a)  Where  goods  are  left  by  the  owner  under  an  agreement  with  his 
creditor  in  the  hands  of  a  third  person,  as  a  security  to  the  creditor,  it 
seems  that  such  third  person,  though  otherwise  unconnected  with  the 
creditor,  may  be  so  far  cansidered  as  his  servant  for  keeping  possession 
of  the  goods,  as  to  render  the  transaction  a  sufficient  pledge  of  them 
to  the  creditor.  Thus  in  Falkener  v.  Case,  2  T.  R  491.  where  the 
owner  of  a  ship  assigned  it,  together  with  a  policy  of  insurance  upon 
it  to  his  creditor  ;  but  the  broker  in  whos^  hands  the  policy  wns,  re- 


\ 


127  THE    LAW    Ot    Lltrs. 

that  the  latter  shall  be  entitled  to  retain  it  lor  hn 
128  security,  until  *some  debt  due  to  him  from  the 
former  is  discharged,  are  in  the  nature  of  pawns 
or  pledges ;  whether  the  deposit  were  made  for 
the  execution  of  some  purpose  on  the  goods  in  the 
course  of  trade,  or  for  bare  custody.  But  as  the 
term  pawn,  as  generally  used  and  understood,  ap- 
plies only  where  goods  are  deposited  for  the  latter 
purpose  ;  and  as  those  lipm  which  arise  from  de- 
posits for  the  former  purpose  are  separately  consi- 
dered under  the  different  characters  to  which  they 
belong  ;  the  only  kind  of  lien  which  will  be  noticed 
under  this  head,  is  that  which  is  created  by  a  deli- 
very of  goods  for  bare  custody,  to  be  restored  to 
the  depositor,  as  soon  as  the  debt  for  which  it  is  a 
security  is  paid.  And  as  the  distinction  between 
mortgages  and  pawns  does  not  appear  to  have 
been  always  sufficiently  understood  or  attended  to, 
it  may  not  be  improper,  previous  to  entering  into 


fusing  to  deliver  it  up  on  the  ground  of  a  lien,  it  was  agreed  between 
ihe  owner  and  the  creditor,  that  it  .should  remain  in  the  broker's  hands 
as  a  security  to  the  creditor  ;  the  lord  chancellor  said,  "there  seems 
to  me  to  be  no  difference  between  cases  where  effects  which  have  been 
in  the  possession  of  the  pawnor  are  pledged,  and  cases  where  goods 
that  he  lias  a  property  in  are  left  in  the  hands  of  a  third  person  ;  I  con- 
sider them  equally  as  pledges."  And  ex  parte  Coming,  9  Ves.  jun  115. 
the  lord  chancellor  observes,  "no  case  has  gone  the  length,  though  I 
do  not  Bee  1  lie  reason,  that  if  the  deposit  is  in  the  hands  of  a  person 
who  could  fairly  be  called  a  third  person  abstracted  from  both,  that 
can  be  considered  as  a  deposit  for  the  creditor,  provided  that  is  proved 
to  be  the  intention  M  But  it  should  be  observed,  that  the  case  of  Fal- 
kener  \  Case  was  a  case  of  a  mortgage  rather  than  of  a  pawn,  and 
deliver)  IS  said  to  be  the  essence  of  an  English  pawn.  See  Ryall  \ 
Rowles,  1  Atk.    167.  and  sec  Wilson  v.  Balfour,  2Camph,  579. 


IKE    LAW    OF    LIEN.  128 

the  consideration  of  the  lien  created  by  the  latter, 
to  explain  what  that  distinction  really  is.  A  very 
ample  statement  of  that  distinction  is  given  by 
Lord  Hardwicke  in  the  case  of  Ryall  v.  Rowles,  1 
Atk.  167.  the  substance  of  which  is,  that  a  mort- 
gage is  a  conditional  sale,  by  which  the  general 
legal  property  in  the  thing  mortgaged  is  conveyed 
to  the  mortgagee,(6)  *subject  to  the  mortgagor's  *  129 
power  of  redemption.  But  by  a  pawn  the  pawnee 
acquires  only  a  special  property  in  the  thing  pawn- 
ed,  to  detain  it  for  his  security,  until  it  is  re- 
deemed, the  general  property  still  remaining  in 
the  pawnor. 

Having  given  this  explanation  of  the  different 
nature  of  mortgages  and  pawns,  I  now  proceed  to 
the  consideration  of  the  lien  which  the  pawnee 
acquires. 

In  the  case  of  pawns  a  lien  is  created  by  the 
transaction  itself,  and  may  be  claimed  to  any  ex- 
tent to  which  the  agreement  by  which  the  pledge 
is  effected,  declares  it  shall  extend  ;  whether  it  be 
for  money  lent  previously  to  or  at  the  time  of  the 
deposit,  or  for  sums  to  be  advanced  subsequently 
to  it(c)     But  how  far  a  subject  which  is  ^pledged    *  130 

(b)  Though  in  equity  only  a  lien  is  obtained  by  the  mortgage,  as 
long  as  the  power  of  redemption  remains,  at  law,  the  right  of  prop ei :;. 
is  transferred,  and  therefore  no  lien  can  exist;  for  a  right  of  lien  ne- 
cessarily supposes  the  property  to  be  in  some  other  person,  and  it  is  a 
contradiction  in  terms,  to  say  a  man  has  a  lien  upon  his  own  property. 
Per  Buller,  J.  Lickbarrow  v.  Mason,  6East,  25.  in  notis. 

(c)  It  seems  that  the  acceptor  of  a  bill  of  exchangee  may  retain  mo- 
ney and  effects  of  the  drawer  in  his  hands  to  discharge  it,  either  until 
the  bill  is  delivered  up  to  him,  or  until  he  receives  a  bond  of  indemnity 

15 


130  THE  LAW  OF  LIEN. 

as  a  security  for  a  debt  already  due,  shall  be  con- 
sidered as  a  security  for  further  loans,  where  there  is 
no  express  agreement  to  that  effect,  must,  from  the 
nature  of  the  thing,  depend  upon  the  circumstances 
of  each  particular  case.  If  it  can  be  presumed 
from  these,  that  the  ground  and  inducement  upon 
which  the  pawnee  advanced  the  further  loans  was 
his  having  a  pledge  in  his  hands,  a  court  of  equity 
will  not  suffer  the  pledge  to  be  redeemed  without 
payment  of  all  the  sums  advanced. (d)  So  where 
a  testator  had  borrowed  a  sum  of  money  upon  a 
pawn  of  jewels,  and  afterwards  borrowed  three 
other  several  sums  of  the  pawnee,  for  each  of 
which  he  gave  his  note  without  taking  any  notice 
of  the  jewels,  it  was  determined  in  the  court  of 
chancery,  that  the  borrower's  executors  should  not 
131  redeem  the  jewels  without  *first  paying  the  money 
due  upon  the  notes,  because  it  was  presumed, 
from  the  money  being  lent  subsequent  to  the  de- 
posit of  the  pledge,  (which  excluded  the  presump- 
tion of  any  trust  to  the  person,)  that  the  pawnee 
lent  the  whole  of  the  money  on  the  credit  of  the 
pledge  in  his  hand.(e) 

against  being  sued  upon  it.  See  Hammonds  v.  Barclay,  2  East,  227. 
Madden  v.  Keinpster,  1  Campb.  12.  But  it  remains  unsettled,  whether 
if  the  drawer,  the  payee,  and  the  acceptor  of  a  bill  of  exchange  be- 
come bankrupts,  after  the  bill  is  negociated,  and  the  payee  be  in  pos- 
session of  property  of  the  drawers,  who,  in  the  event  of  the  bill  being 
proved  againsl  the  estate  of  the  payee,  will  be  indebted  to  the  payee  ; 
the  assignees  under  the  commission  againsl  the  payee,  will  have  any 
lien  arising  from  the  possibility  of  such  debt.  Walker  v.  Birch,  6  T. 
ft  258. 

(i/)  Ex  parte  Ockenden,  1  Atk.  236 

(e)  Demainbraj  \   Metcalf,  Prec.in  Cha.  419.  2  Vcrn.  691.  8.  S.  C. 


THE    LAW   OF    LIEN.  131 

But  if  the  circumstances  of  the  case  do  not  war- 
rant such  a  presumption,  the  pawnee  will  then 
only  be  allowed  to  retain  for  the  debt  for  which 
the  pledge  was  expressly  made.(/)     Nor  is  it  a 
general  rule  either  at  law  or  equity,  that  where  a 
man  having  a  security  from  another  for  a  loan  al- 
ready made  to  him,  advances  more  money  to  the 
same  person,  that  person  shall  either  pay  the  lender 
the  whole  debt,  or  not  redeem  at  all.     And  if  any 
transaction  takes  place  between  the  pawnor  and 
pawnee,  by  which  the  latter  acknowledges  that  he 
has  only  possession  of  the  security  for  one  sum,  he 
shall  not  afterwards  be  allowed  to  claim  a  lien 
upon  it  in  respect  of  another.     Thus  where  per- 
sonal securities  were  pledged  for  a  specific  debt, 
and   afterwards  a    mortgage    was    made  by  the 
pawnor  to  the  pawnee,  of  an  estate,  no  notice  be- 
ing taken  *at  the  time  of  the  debt  for  which  the    *132 
personal  securities  were   pledged,  and  some  time 
subsequent  to  the   mortgage  the  same  securities 
together  with  other  were  pledged  to  the  pawnee 
for  the  balance  of  an  account  due  to  him  from  the 
pawnor,  no  notice  being  taken  of  the  mortgage,  re- 
demption of  the  personal  securities  was  decreed, 
without  compelling  the  discharge  of  what  was  due 
on  the  mortgage,  because  there  appeared  to  have 
been  no  intention  of  tacking  the  securities  to  the 
mortgage,  at  the  time  the  latter  was  made  ;  and 
if  such  an  intention  really  existed,  it  was  waived 
by  the  subsequent  pledge  of  the  securities  without 

(/)  Ex  parte  Oekenden,  1  Atk.  2.SG 


152  THE    LAW    OF    LIEN. 

noticing  the  mortgage,  and  the  transactions  were 
entirely  distinct. {g)  Upon  the  same  principle, 
where  a  banker  being  in  advance  to  his  employer 
to  the  amount  of  fourteen  hundred  pounds,  after- 
wards received  from  the  latter  securities  as  a 
pledge  for  one  thousand  only,  it  was  determined 
that  the  banker  had  no  lien  upon  them  for  more 
than  the  thousand  pounds.(/0 
133  *1 .  According  to  the  general  rule  of  law  with  res- 
pect to  liens,  no  lien  can  be  acquired  by  a  pawnee, 
where  the  deposit  of  the  property  is  made  by  the 
pawnor  after  the  commission  of  an  openf/J  act  of 

(£■)  Jones  v.  Smith.  2  Ves.  jun,  372.  The  decree  in  this  case  was 
afterwards  reversed  in  the  house  of  lords,  but  it  is  not  stated  upon 
what  ground,  see  6  Ves.  jun.  229.  note(  J) 

(h)  Vanderzee  v.  Willis,  3  Bro.  C  C  21.  But  see  Adams  v.  Clayton, 
6  Ves.  jun.  226.  where  the  master  of  the  rolls  says,  "  in  Vanderzee  v- 
Willis  there  was  an  assignment  of  bonds  to  secure  WOOL  borrowed  by 
the  testator  from  his  bankers  ;  at  that  time  he  was  indebted  to  them  in 
more,  and  l.e  continued  indebted  to  them  in  more  to  his  death.  His 
executrix  filed  a  hill  to  -cdcem  ;  the  bankers  insisted  upon  a  right  to 
tack,  ami  so  standing  the  case  I  think  theynrtfst  have  been  paid  the  whole. 
Bui  it  vvas  insisted,  that  a  bid  had  been  filed  by  creditors,  .  nd  a  decree 
made.  Lord  Thurlow  seems  to  have  hplden,  that  it  would  have  made 
it  a  question  with  creditors  and  not  with  the  executrix  simply  ;  stating 
th'_  principle,  that  where  the  equity  has  passed  to  the  assignee,  you 
cannot  insist  upon  retaining  against  the  assignee."  And  upon  this 
principle  in  the  case  of  Clayton  v.  Adams,  where  a  testator  had  conveyed 
all  ins  estate  to  one  creditor  in  trust  for  the  benefit  of  all,  and  assigned 
a  policy  of  insurance  on  his  life  to  the  trustee  as  a  security  for  10007 
advanced  by  him  to  the  testator,  who  upon  the  death  of  the  testator 
received  the  money  from  the  insurance  office,  and  claimed  to  retain  the 
BUrplue  that  remained  after  reimbursing  himself  the  1000/.  for  money 
d'i>  upon  ■•  subsequent  promissory  note,  the  master  of  the  rolls  decided, 
that  hi  was  mit  entitled  so  to  do  against  the  other  creditors. 

(/)   If  the  ad  he  secret  the  transact  ion  is  not  void  unless  it  takes  place 
within  two  calendar  months  of  the  (.late  of  the  commission,    46  Geo.  3> 
j  s.  1 


THE    LAW    OF    LIEN.  133 

bankruptcy,  or  with  intent  to  give  the  pawnee  a 
fraudulent  *piefereiice  in  the  event  of  his  bank-    *  134 
ruptcy.(&) 

2.  Where  the  goods  are  pawned  upon  an  usuri-  r 
ous  loan,  no  lien  can  be  acquired  by  the  pawnee 
for  more  than  what  is  fairly  due  to  him,  the  pawnor 
being  allowed  in  such  case  to  recover  them  in  an 
action  of  trover  upon  tendering  that  sum  ;(/)  for 
where  contracts  are  prohibited  by  positive  statute 
for  the  sake  of  protecting  one  set  of  men  from  ano- 
ther, the  party  injured  by  the  contract  is  not  con- 
sidered as  standing  in  pari  delicto  ;  and  in  fur- 
therance of  the  statute  is  allowed,  after  the  trans- 
action is  completed,  to  bring  his  action,  and  defeat 
the  contract,  where  money  has  been  paid  upon  itj 
by  an  action  for  money  had  and  received,  and 
where  goods  deposited,  by  an  action  of  trover.(m) 
But  as  these  are  equitable  actions,  before  the  party 
can  entitle  himself  to  recover  upon  them  he  must 
pay  or  tender  the  other  party  what  is  really  clue  to 
him.  And  it  has  accordingly  "been  decided,  that  *  135 
though  the  loan  be  usurious,  the  pawnor  cannot 
recover  the  goods  pawned  in  trover,  without  first 
tendering  the  sum  really  advanced.(«)     And  in 

(k)  Wilson  v.  Balfour,  2  Campb.  R.  579,  Tamplin  v.  Diggens,  2 
Campb.  312;  and  see  ante,  chap.  4. 

(Q  Astley  v.  Reynolds,  2  Str.  915.  Fitzroy  v.  Gwillim,  1  T.  R.  153. 

(m)  Moses  v  Macferlan,  2  Burr,  1011.  Dale  v.  Toilet,  4  Bun-.  2133. 
Clarke  v.  Shee,  Cowp.  200.  Smith  v.  Bromley,  Doug1.  696.  Lowry  v. 
Bourdieu,  Doug.  467. 

(n)  Fitzrey  v,  Gwillim,  1  t.  R,  153 


135  THE    IAW    OF    LIF.N. 

conformity  to  the  principle(o)  of  the  cases  in  whicij 
the  recovery  of  money  paid  upon  usurious  con- 
tracts has  been  sought  by  actions  for  money  had 
and  received,  and  in  which  only  the  surplus  be- 
yond the  legal  interest  has  ever  been  allowed  to  be 
recovered,  legal  interest  should  also  be  tendered  to 
the  pawnee  in  an  action  for  trover  for  goods  pawned 
upon  an  usurious  loan.QjJ 

3.  Neither  can  the  pawnee  acquire  any  lien  upon 

*136    goods(<7)  pawned  without  the   *authority  of  the 

owner,  though  the  want  of  title  in  the  pawnor  was 

unknown  to  the  pawnee  at  the  time  he  received  the 

pledge. (r)     For  it  is  a  principle  of  the  law  of  Eng- 

(o)  That  the  plaintiff  shall  only  be  allowed  to  recover  so  much  as  the 
defendant  is  not  entitled  in  conscience  to  retain. 

(/;)  See  cases  ante  note(m). 

(9)  Excepting  pledges  of  such  goods  as  are  placed  upon  the  same 
footing  as  money,  as  bank  notes,  notes  payable  to  bearer,  and  bills  of 
exchange  endorsed,  and  other  securities,  the  legal  interest  in  which  by 
the  law  merchant  passes  by  endorsement  and  delivery,  and  which  if 
passed  to  a  bona  fide  holder  for  a  valuable  consideration  without  no- 
tice, cannot  be  recovered  by  the  original  owner.  Salk.  126.  Miller  v. 
Race,  1  Burr.  452.  Grant  v.  Vaughan,  3  Burr.  1516  1  Bla.  R.  485. 
Peacock  v.  Rhodes,  Doug.  682.  Solomons  v.  Bank  of  England,  13 
East,  135  n.  a.  Lowndes  v.  Anderson,  13  East,  130.  King  v.  Milsom,  2 
Campb.  5.  India  bonds  too,  which  before  the  statute  52  Geo.  3.  c.  64. 
were  not  upon  this  footing,  see  Glyn  v.  Baker,  13 East,  509.  are  by  that 
statute  made  assignable  and  transferable  by  delivery  of  possession. 

(r)  Marsden  v.  PanshaU,  t  Vern.  407.  Daubigny  v.  Duval,  5  T.  R 
604.  De  Bouchout  v  Goldsmid,  5  Ves.  jun.  211.  Maans  v.  Henderson, 
1  East,  337.  Vin.  Ab.  lit.  Pawn.(E)  Where  chattels  are  pledged  by  a 
person  who  js  not  the  owner,  but  a  mere  bailee,  though  the  pawnee 
nipposes  the  pawnor  to  be  the  true  ownor,  and  has  no  reason  to  think 
otherwise;  a  court  of  equity  will  oblige  the  pawnee,  if  he  admits  the 
r i  1 1 < •  ol'tlit  trU(  owner,  and  only  claims  the  value  for  which  the  chat- 
■  il    flrerc  pledged,  to  make  suifi  a  discovery  and  give  such  a  descrip- 


THE  LAW  OF  LIEN.  136 

land  as  well  as  of  the  civil  law,  that  where  a  person 
is  acting  ex  mandato,  those  dealing  with  him  must 
enquire  into  the  extent  of  his  authority. (s )  Ac- 
cordingly *vvhere  a  factor  or  broker  pawns  the  *  137 
goods  of  his  principal,  the  pawnee  cannot  retain 
them  against  the  principal  for  the  money  advanced 
upon  them,(?)  though  he  was  ignorant  at  the  time 
of  the  pledge  of  the  relation  in  which  the  pawnor 
stood  to  his  principal,  and  contracted  with  him  as 
the  owner  of  the  goods  ;(w)  and  though  there  is  the 
formality  of  a  bill  of  parcels  and  receipt  ;(a)  nor  will 
the  pawnee  acquire  a  lien  against  the  principal, 
where  the  factor  or  broker  makes  the  pledge  of  the 
goods  by  endorsement,  and  delivery  of  the  bill  of 
lading,(?/)  or    by  transferring  *the    goods    to  the    *  138 

tion  of  the  property,  as  will  enable  the  true  owner  to  bring  an  action  at 
law  for  it.    Strode  v.  Blackburne,  3  Ves.  jun.  222. 

(*)  De  Bouchout  v  Goldsmid,  5  Ves.  jun.  211.  and  see  judgment  of 
Lawrence,  J.  Newson  v.  Thornton,  6  East,  17.  Upon  this  principle  a 
transfer  by  an  executor  of  the  assets  of  the  testator  by  way  of  pledge 
immediately  after  the  death  of  the  latter,  to  secure  a  debt  of  the  exe- 
cutor, and  future  advances  to  be  made  to  him,  may  be  set  aside  in 
equity  by  the  general  legatees,  where  the  creditor  to  whom  the  pledge 
is  made,  is  guilty  of  gross  negligence  in  not  enquiring  into  the  autho- 
rity of  the  executor  to  dispose  of  the  assets  in  that  way  ;  though  it  do 
not  appear,  that  he  was  aware  of  that  want  of  authority.  Hill  v.  Simp- 
son, 7  Ves.  jun.  152.  Taylor  v.  Hawkins,  8  Ves.  jun.  209.  and  a  pecu 
niary  or  residuary  legatee  may  have  such  a  pledge  set  aside,  though  it 
be  only  for  money  advanced  at  the  time  to  the  executor,  if  it  appears, 
from  the  circumstances  of  the  case,  that  the  pawnee  had  knowledge  of 
an  intended  application  of  the  money  not  conformable  to  or  connected 
with  the  character  of  executor.  Maclcod  v.  Drummond,  14  Ves.  jun; 
353.  17  Ves.  jun.  152. 

(t)  Cases  cited,  ante,  note(r). 

(;/)  M'Combie  v.  Davics,  6  East,  533. 

(x)  Paterson  v.  Tash,  2  Str.  1178. 

(y)  Newsom  v.  Thornton,  6  East,  17-  2  Smith's  R.  207.  S.C. 


138  THE    LAW    op    LIEN. 

pawnee's  name,  where  tL-v  arei;i  the  king's  ware- 
house, (z)  any  more  than  vvhtid  the  factor  or  broker 
makes  it  by  delivery  of  the  goods  themselves  to  the 
pawnee.(a) 

In  conformity  to  the  same  general  rule,  where 

goods   are  stolen  and   pawned,   the  owner   may 

139    maintain  trover  against  the  ^pawnbroker,  though 

the  'latter  was  ignorant  of  their  being  stole  n.f  b) 

(i)  M'Combie  v.  Davies,  6  East,  538.  2  Smith's  R.  557-  S.  C. 

(a)  But  a  banker  in  London  to  whom  bills  are  paid  by  a  customer 
who  keeps  his  accoimts  with  him,  may  pledge  them  to  a  third  person 
as  a  security  for  money  to  be  advanced  to  the  banker,  though  the 
banker  at  the  time  of  the  pledge  was  indebted  in  a  considerable  ba- 
lance to  his  customer ;  provided  that  circumstance  was  unknown  to 
the  pawnee  Collins  v.  Martin,  2  Esp.  Jl.  520.  And  where  a  principal 
seeks  to  recover  the  value  of  his  goods,  which  have  been  pledged  by 
his  factor  in  an  action  of  trover,  though  no  tender  to  the  pawnee  is  ne- 
cessary ;  yet  if  the  factor  is  in  advance  to  the  principal,  it  seems  that 
the  latter  must  tender  to  the  former  what  is  due  to  him,  before  he  can 
recover  in  such  action  from  the  pawnee.  Daubigny  v.  Duval,  5  T.  R. 
504.  where  the  pawnor  has  only  a  limited  estate  or  interest  in  a  thing, 
he  cannot  giv  e  a  greater  estate  or  interest  to  the  pawnee  by  pledging  it 
lo  him.  And  therefore,  where  a  tenant  for  life  of  plate  pawned  it  to 
a  pawn-broker,  and  died ;  it  was  adjudged,  that  though  the  pawn-broker 
had  no  notice  of  the  limited  nature  of  the  pawnor's  interest  in  the 
plate,  he  could  have  no  lien  upon  it  against  the  remainder-man.  Hoare 
v.  Parker,  2  T.  R.  376.  and  see  ex  parte  Nesbitt,  2  Scho.  and  Lcf.  R 
279.  ace. 

(6)  Though  goods  stolen  and  sold  in  market  overt  cannot  be  recover- 
ed from  the  purchaser,  except  under  21  II.  8.  c.  11.  where  the  owner 
prosecutes  the  felon  to  conviction.  Ilorwood  v.  Smith,  2  T.  R.  750. 
There  is  no  market  overt  for  pqpiming.  See  Hoare  v  Hartopp,  3  Atk. 
41  and  Packer  v.  Gillies,  Guildhall  sittings  after  Trinity  Term,  1SJ6, 
cited  2  Campb.  R,  336.  n.  in  which  case  trover  being  brought  against  a 
pawnbroker  for  goods  pledged  with  him  which  had  been  stolen  from 
the  house  of  the  plaintiff,  and  pawned  by  a  woman  who  was  tried  for 
the  felony,  but  acquitted  on  the  absence  of  a  materia]  witness;  Lord 
EUenborough  held,  that  the  action  well  lay  against  the  pawnee,  and  the 
plaintiff  had  a  verdict.  N.  B.  It  is  provided  by  stat.  1.  Juc   1  c.  21.  that 


TE    LAW    OF   LIEN.  139 

Or  if  goods  are  placed  by  the  owner  in  the  hands 
of  another  for  the  purpose  of  safe  custody,  and 
pawned  by  the  latter  to  a  third  person,  the  pawnee 
cannot  retain  them  against  the  owner.(cJ  Or  if 
the  finder  of  goods  pledge  them  the  owner  may 
retake  them.(d) 

But  though  no  lien  can  be  acquired  upon  goods 
pawned  without  the  authority  of  him  who  has  the 
general  property  in  them,  even  though  the  pawnee 
is  not  *awarc  of  the  pawnor's  want  of  authority  to  *  14Q 
dispose  of  them  in  that  manner,  yet  where  goods 
are  obtained  under  false  pretences,  and  pawned 
without  notice  of  the  fraud  to  the  pawnbroker,  and 
on  the  conviction  of  the  offender,  the  original 
owner  get  possession  of  his  goods  again  ;  the 
pawnbroker  may  maintain  trover  against  him  to 
recover  them  back.(e) 

5.  The  pawnee  has  such  an  interest  in  the  when 
pawn  that  he  may  assign  it  over(f)  to  a  third  per-  piwn°ee 
son,  and  the  assignee  will  be  subject  to  an  action 
of  detinue,  if  he  detains  it  after  payment  or  tender 
of  the  money  by  the  owner.fg)  And  where  the 
pawnee  of  goods  pawned  them  over  to  another  for 
a  larger  sum  than  that  for  which  the  owner  pledg- 
ed them  to  him,  and  afterwards  borrowed  more 

the  sale  of  any  goods  wrongfully  taken,  to  any  pawnbroker  in  London, 
or  within  two  miles  thereof,  shall  not*  alter  the  property. 

(c)  Hoare  v.  Hartopp,  3  Atk.  44. 

(d)  Bro.  Pledges,  28.  Vin.Ab.tit  Pawn.(E.) 

(e)  Parker  v.  Patrick,  5  T.  R.  175. 
(/)  Moor  v.  Benham,  Owen,  124.  Demainbvay  v.  Metcalf,  2  Vern.  691 

698.  S.  C  Mason  v.  Lickbarrow,  1  H.  Bla.  360.  Yelv.  178    Contr 
(g)  Yelv.  178.  Cro.  Jac.  244. 

16 


is  trans- 
ferable. 


140  THE  LAW  OF  LIEN. 

money  on  promissory  notes  of  the  second  pawnee, 
the  court  of  chancery  would  not  suffer  the  owner  to 
redeem  from  the  second  pawnee,  without  paying 
him  the  whole  of  the  money  which  he  had  ad- 
vanced upon  the  goods  and  the  promissory 
notes.(h) 

14d         *g.  Upon  tender  of  the  money  advanced  upon 
when    ■  *  ■■.-■'  ;. 

ahest-     the  pawn,  by  the  pawnor  or  his  executor,  the  hen 

of  the  pawnee  is  immediately  divested ;  and  the 
property,  notwithstanding  his  refusal  to  part  with 
it,  is  instantly  reduced  to  the  pawnor  or  his  execu- 
tor ;  and  they  may  bring  trover  for  it.(i)  But  the 
» 142    pawnee  will  not  lose  the  *benefit  of  his  lien  by  an 

(/;)  Demainbray  v.  Metcalf,  2  Vern.  691.  The  reporter  adds  a  quaere 
to  the  decision,  and  it  seems  to  be  at  variance  with  those  of  Hoare  v. 
Parker,  2  T.  R.  S76.  and  Marsden  v.  Panshull,  1  Vern.  407  and  others ; 
the  principle  of  which  is,  that  the  pawnor  cannot  create  a  greater  in- 
terest  in  the  thing  pawned  than  he  himself  possesses.  It  seems  like- 
wise tor  be  ut  variance  with  the  rule  laid  down  in  Ratcliffv.  Davis,  Yelv. 
178.  that  where  the  pawnee  has  delivered  over  the  pledge  to  a  third 
person,  even  on  consideration,  a  tender  need  not  be  made  by  the  owner 
to  the  latter  According  however  to  the  report  of  Demainbray  v-  Met- 
calf, in  Prec.  in  Chanc.  419.  the  day  limited  for  redemption  by  the 
owner  of  the  jewels,  from  the  first  pawnee,  was  elapsed,  and  the 
jewels  had  become  at  law  the  absolute  property  of  the  latter :  when 
the  former  applied  to  equity  to  be  allowed  to  redeem,  which  it  ap- 
pears may  be  done,  as  well  in  the  case  of  a  personal  pledge  as  of  a 
mortgage.  And  if  this  statement  be  correct,  the  owner  having  lost  his 
legal,  and  having  only  an  equitable  right  to  redeem,  the  conditions  an- 
nexed 1o  this  redemption  in  equity  (by  which  an  injury  to  a  third  party 
is  prevented)  will  no1  appear  unreasonable. 

(i)   Yin.  Ah.  tit.  Pawn.  (E.)    2  Salk.  522.    1  Bulstr.  29.  1  Rol.  R.  129. 

In  the  caseofRalcliffe  v.  Davies,  Yelv.  178.  Cro.  Jac.  244.  it  was  held 

by  the  majority  of  the  courl  that  ilie  pawnor  might  redeem  from  the 

utrix  of  the  pawnee,  bul  that  th«  executor  of  the  pawnor  could 

redeem 


THE  LAW  OF  MEN.  142 

execution  upon  the  goods  of  the  pawnor  for  a  debt 
recovered  from  him,  subsequent  to  the  act  of 
pawning.  So  if  a  man  deliver  goods  in  pledge 
for  a  loan  of  forty  pounds,  and  a  sum  to  that 
amount  is  afterwards  recovered  from  him  in  an  ac- 
tion of  debt  by  another  person :  those  goods  shall 
not  be  put  in  execution  until  the  forty  pounds  are 
paid.(&) 

Nor  shall  the  pawnee  be  deprived  of  a  lien  on 
the  goods  pawned,  by  the  pawnor's  being  after- 
wards attainted  of  felony  ;  and  the  king  shall  not 
in  that  case  have  the  goods  without  first  paying  the 
sum  for  which  they  were  pledged. (/)  But  the 
king  may,  if  he  choose,  redeem  them  by  paying 
the  money. (m) 


Lien  of  Taylor. 

A  taylor  has  by  the  common  law,  a  particular 
lien  upon  a  coat  or  other  garment  *for  the  price  of  *  143 
making  it,  and  is  not  liable  to  an  action  of  trover 
for  refusing  to  deliver  it  up  to  the  person  from 
whom  he  received  the  materials,  unless  the  price 
has  been  either  paid  or  tendered. (a)     But  he  has 

(h)  Vin    Ab.  Tit.  Pawn.  (A.)  3. 

(I)  Bro.  Pledges,  pi.  31.  Vin.  Ab.  Tit.  Pawn.  (A.)    1  Bulst.  29, 

O)  Yelv.  178. 

(a)  Y.  B.  5  Ed.  4.  fol.  2.  Yelv.  67.  Cooper  v.  Andrews,  Hob.  42. 
Chapman  v.  Allen,  Cro.  far.  271.  Hussey  v.  Christie,  9  East,  4J.1  6 
Bac  Ab    694. 


148  THE  LAW  OF  LIEN. 

no  power  to  sell  the  garment  upou  default  of  pay- 
ment.^) 


Lien  of  Vendor. 

A  vendor  of  property  has  by  the  common  law,  a 
lien  upon  it  as  long  as  it  continues  in  his  posses- 
sion, and  the  vendee  neglects  to  pay  or  tender  the 
price  agreed  upon  for  it.  For  though  the  general 
property  in  the  thing  sold  is  vested  in  the  vendee 
by  the  sale,  a  lien  or  special  property,  which  will 
be  a  good  defence  in  an  action  of  trover,  remains 
in  the  vendor/c)     Unless  indeed  it  appears  from 

(/>)  Yelv.  67. 

(c)  Y.  P>.  5  Ed.  4.  foil  2.  S.  P.  22.  (R.)  4.  fol.  49.    Hob.  41.  Mason  v. 
Lickbarrow,  1  II.  Bla.  363.    2  Hla.   Com.  448.     A   part    payments,  it 
seems,  Would  not  divest  the  lien,  see  Hodgspn   v.   Loy,  7  T.  R.  440. 
Poize  v.  Wray,  3  East,  93.    In  Noy's  Maxims,  SS  recognized  by  Ld. 
Bllenborough,  Ch.  J.  in  Hinde  v.  Whitehouse,  7  Past,  571.     It  is  said,  if 
I  sell  my  horse  for  money,  I  may  keep  him  Until  I  am  paid  ;  but  I  can- 
not have  an  action  of  debt  until  he  be  delivered.;  yet  the  property  of 
the  horse  is  by  the  bargain  in  the  bargainor  orbuyer.     But  if  hedopre- 
tendi  i-  me  my  money,  and  I  do  refuse  it,  he  may  take  the  horse, 
or  have  an  action  of  detainment.     .'1ml  if  the  horse  die  in  tny  stable,  be- 
'ween  the  bai  ■<in  and  delivery,  \  may  have  an  action  of  debt  for  my  mo- 
rain  the  property \rpas  in  the  buyer.     It  seems,  from 
the  case  of  llansqt)  \    Meyer,  6  Past,  CM.  that  while  any  thing  remains 
of  the  vendor,  to  the  thing  purchased,  before  it 
-  .11  be  delivered  to  the  sendee,  the  property  docs  not  pass  to  the  lat- 
.  nd  that  not  onlj  a  mere  lien,  or  special  property,  but  the  general 
property  remains  in  the  vendor;   but  where' no  further  act  remains  to 
the  goods  on  the  pa:-!  of  the  vendor,  it  seems  that  the  pro- 
pen  yesls  in  the  vendei   from  the  time  of  the  ;.ile,  subject  to  the  ven- 
prici  n  his  possi     ion,  and  the 


THE    LAW    OF    LIEN,  *144 

*the  conditions  of  the  sale,  that  the  vendor  relied 
solely  upon  the  personal  credit  of  the  vendee,  in 
which  case  he  cannot  have  recourse  to  the  right  of 
retainer,  as  where  the  day  of  payment  is  by  agree- 
ment postponed  to  a  future  day.  The  vendee  may 
obtain  possession  of  the  thing  sold  immediately  by 
an  action  of  trover  or  detinue,  *and  without  pay-  *  145 
ment  of  the  price,  and  the  vendor's  only  remedy 
will  be  by  action  for  the  money  when  it  becomes 
due.(d) 

A  vendor  is  divested  of  his  lien,  by  a  delivery  of 
the  whole  of  the  goods  sold  to  the  vendee,  or  any 
one  who  can  be  considered  as  his  agent  for  the 
purpose  of  receiving  them.(e)  And  if  that  delivery 
be  only  symbolical  or  constructive,  as  by  actual 
delivery  of  the  key  of  the  vendors  warehouse,  in 
which  the  goods  are  deposited  at  the  time  of  the 
sale,f /)  or  by  actual  delivery  of  a  part  only  of 
goods  sold  under  an  entire  contract,^)  *it  seems    *  146 

vendor  may  from  that  time  consider  the  contract  as  complete,  and 
bring-  an  action  of  indebitatus  assumpsit  for  goods  bargained  and  sold. 
See  Dunmore  v.  Taylor,  Peake,  C  N.  P.  41.  and  cases  cited  there 
in  notis. 

(d)  Y.  B.  5  Ed.  4.  fol.  2.  17  Ed.  4.  fol.  1  Anon.  Dyer,  29.(4)  Com 
Dig.  Tit.  Agreement.  B  3.  and  sec  Hammond  v.  Anderson,  1  X.  II.  69. 

(c)  Godfrey  v.  Furzo,  3  P.  Wms.  185.  and  cases  cited  there  in 
note  (IV 

(/)  Dict.Ld  Kenyon,  Ellis  v.  Hunt,  3T.  R.  464.  Copland  v.  Stein,  8 
T.  It.  199. 

(g-)  Slubeyv.  Heyvvard,  2  II.  Bla.  504.  Hammonds  v.  Anderson,  IN 
R.  69.  Ex  parte  Gwynne,  12  Ves.  jun.  379.  In  Hammonds  v.  Ander- 
son, Sir  J.  Mansfield,  C.J.  and  Rook  e,  J.  seem  to  rely  on  the  circum- 
stance of  the  contract's  being  entire,  and  of  part  having  hecn  actual!) 
taken  away  by  the  vendee,  and  decide  the  case  upon  the  same  ground 
as  that  of  Slubev  v/lleyward      But  Heath,  J.  says  "  though  the  goods 


146  THE    LAW    OF    LIEN. 

that  it  would  be  a  sufficient  delivery  to  divest  the 
vendor  of  his  lien  upon  the  whole  of  the  goods. 

But  if  the  symbolical  or  constructive  delivery  be 
conditional,  and  the  condition  be  not  performed, 
the  vendor  may  retain  the  whole,  or  whatever 
part  of  the  goods  remains  in  his  possession  for  the 
price  of  the  who\e.(h) 


Lien  of  Wharfinger. 

A  wharfinger  not  only  has  a  lien  on  goods  depo- 
sited at  his  wharf  for  the  money  due  for  the  wharf- 
age of  those  particular  goods,  but  is  also  entitled 
by  the  general  usage  of  his  trade  to  retain  them 
for  a  general  balance  due  from  the  owner.  This 
was  decided  in  the  case  of  Naylor  v.  Mangles,  1 
Esp.  R.  109.  where  Lord  Kenyon,  Ch.  J.  said,  that 
a  lien  from  usage  was  a  matter  of  evidence,  and 
the  usage  in  the  present  case  had  been  proved 
147  so  often,  that  *he  should  consider  it  as  a  settled 
point  that  wharfingers  had  the  lien  contended  for. 
And  on  the  authority  of  this  case,  the  same  point 
was  afterwards  confirmed  and  declared  to  be  Set- 


remained  in  the  warehouse  of  the  defendant  after  the  sale,  they  were 
no  Longer  in  the  possession  of  the  vendor  for  any  other  purpose  whatso- 
ever." AndChambre,  .1.  observes  that  "this  is  a  much  stronger  case 
thanthatofSlo.be)  v.  Heyward,  which  proceeded  upon  the  principle 
thai  a  delivery  of  part,  where  the  contract  was  entire,  was  a  delivery  of 
K(  whole  ;  Im!  hi  n  th<  sre  was  an  actual  delivery  of  the  whole" 
!'■  parte  Gwynne,  12  Ves.|un  379. 


THE    LAW    OF    LIEN.  147 

tied  law  by  Lord  Eldon,  Ch.  J.  in  the  case  of 
Spears  v.  Hartley,  3  Esp.  R.  81. (a) 

But  wharfingers  are  not  entitled  by  the  common 
law,  nor  is  there  any  usage  established,  which  en- 
titles them  to  a  lien  upon  goods  which  are  not  ac- 
tually landed  upon  their  wharfs,  though  the  vessels 
in  which  the  goods  are,  be  fastened  to  the  wharfs, 
and  unloaded  in  that  situation.(6) 

(a)  And  see  Savil  v.  Barchard,  4  Esp.  R.  93.  Richardson  v.  Goss,  S 
Bos.  &  Pul.  124. 

(6)  Syedsv.  Hay,  4  T.  R,  260;  and  see  Stephen  v.  Coster,  1  Bla.  R 
413.  423 


STOPPAGE  IN  TRANSITU 


CHAP.  I. 


1.  Nature  and  origin  of  the  right.  2.  By  what 
description  of  persons,  and  under  what  nature  of 
contract  it  may  be  exercised. 

Nature  and  origin  of  the  right. 

THE  right,  which  in  the  language  of  the  law  is 
designated  that  of  stoppage  in  transitu,  is  the  right 
which  a  person  who  consigns  goods  on  credit  to 
another,  has  of  resuming  the  possession  of  those 
goods,  before  they  arrive  in  the  hands  of  the  person 
to  whom  they  are  consigned,  upon  the  latter's  be- 
coming bankrupt,  or  insolvent ;  and  of  retaining 
that  possession  until  the  full  price  of  the  goods  is 
paid.  This  right  is  obviously  very  analogous  to 
the  common  law  right  of  lien ;  they  are  both  esta- 
blished upon  principles  of  equity,  and  the  former 
is  in  fact  only  an  extension  *of  the  latter,  the  right  *  15ft 
of  lien  enabling  the  vendor  to  detain  goods  sold  on 
credit,  before  he  has  relinquished  the  possession  of 

17 


150  STOPPAGE  IN  TRANSITU. 

them,  and  the  right  of  stoppage  in  transitu  ena- 
bling him  to  resume  them  before  the  vendee  has 
acquired  possession  of  them,  and  to  retain  them 
until  the  full  price  is  paid  or  tendered  ;  but  if  that 
be  paid  or  tendered,  he  cannot  resume,  or  if  he 
has  resumed,  any  longer  retain  possession,  though 
the  vendee  is  in  insolvent  circumstances;  for  he 
cannot  stop  the  goods  for  money  due  on  other  ac- 
counts,^ and  the  right  of  stoppage  in  transitu 
does  not  proceed  upon  the  ground  of  rescinding 
the  contract  any  more  than  the  right  of  lien  \(b) 
and  hence  it  appears  that  the  assignees  of  the 
bankrupt  consignee  may  recover  the  goods  upon 
tendering  the  full  pnce.(c)  Upon  the  same  prin- 
151  ciple  too  *it  has  been  determined,  that  although 
the  goods  be  actually  stopt  in  transitu  by  the  ven- 
dor, he  may,  after  the  credit  for  them  has  expired. 

(a)  So  in  Snee  v.  Present,  1  Alk.  245.  the  chancellor  decreed  that  the 
factors  were  only  entitled  to  the  purchase  money,  and  charges  incident 
to  the  goods. 

(b)  And  hence  the  circumstance  of  the  vendee's  having  paid  in  part 
for  the  goods  does  not  defeat  the  vendor's  right  to  stop  them  in  tran 
situ,  but  only  diminishes  his  lien  pro  tanto  on  the  goods  detained 
Hodgson  v.  Loy,  7  T.  R.  440.  and  seo  opinion  of  Buller,  J.  in  Lickbar- 
row  v.  Mason,  6  East,  25.  in  not  is. 

(c)  Accordingly,  in  Snee  v.  Ptescot,  1  Atk.  245.  the  goods  were  or- 
dered to  be  delivered  up  to  the  assignees,  upon  payment  of  the  money 
laid  Ottt  upon,  ami  the  charges  incident  to  them.  And  in  Walker  v. 
Woodbridge,  Co  II.  L.  394.  where  Hie  assignees  of  the  consignee  got 
forcible  possession  of  the  goods  after  liny  had  been  fairly  stopt  by  the 
consignor,  and  he  petitioned  to  have  them  delivered  up  to  him  ;  the 
purchase  money  was  ordered  to  he  paid  him  by  the  assignees,  or  the 
goods  to  Ix-  sold  for  lhar  purpose;  and  sec  judgment  of  Lord  Knumi, 
Ch.  .1    in  Kllis  v    Hunt,  X  T.  K   -t(i4.  where  he  observes  that  bankruptcy 

no  countermand  ;  and  see  Hohtlingk  v.  Schneider,  3  Esp.  It.  59. 


STOPPAGE  IN  TRANSITU.  151 

recover  the  price  in  a  count  for  goods  bargained 
and  sold,  if  he  was  ready  to  deliver  them  upon  its 
being  paid .(d) 

The  right  of  stoppage  in  transitu  though  thus 
similar  in  its  nature  to,  is,  however,  of  much  later 
origin  than  that  of  lien,  for  the  vendor's  lien  on 
goods  sold  for  the  price  is,  as  we  have  before  seen, 
an  ancient  common  law  right;  but  the  doctrine  of 
stoppage  in  transitu  was  first  introduced  in  courts 
of  equity  ;  and  the  earliest  instance  to  be  found 
of  its  recognition  by  those  courts  is  in  the  case  of 
Wiseman  v.  Vandeput,  2  Vein.  2Q3.  decided  in  the 
year  *1690.  The  benefit  which  was  expected  to  *  152 
result  to  trade  from  the  allowance  of  the  right/ej 
and  the  apparent  injustice  of  allowing  the  goods 
of  the  consignor,  in  the  event  of  the  consignee's 
bankruptcy,, to  be  applied  in  payment  of  the  other 
creditors  of  the  latter,  induced  the  courts  of  law 
to  follow  the  example  of  the  courts  of  equity,  and 
to  adopt,  and  by  a  variety  of  decisions  establish 
the  right  of  stoppage  in  transitu  as  a  legal  right,(/) 
and  upon  the  same  principles  of  justice,  it  has 
since  been  looked  upon  both  by  courts  of  law  and 
equity    as   a   right   to   be   favoured   and   encou- 

,</)  Kymer  v.  Suwercrop,  1  Campb.  Tt.  109. 

(e)  Bohtlingk  v  Inglis,  3  East,  395. 

(/)  Per  Buller,  J.  Ellis  v.  Hunt,  3  T.  R.  469.  Hodgson  v.  Loy,  7  T. 
R.  440.  Per  Buller,  J.  Lickbarrow  v.  Mason,  6  East,  25.  in  notis.  Dis. 
on  v.  Baldwin,  5  East,  175.  Per  Heath,  J.  Oppenheim  v.  Russel,  3  Bos. 
&.  Pul.  42.  In  all  these  cases  the  right  of  stoppiug  in  transitu  is  con- 
sidered as  a  legal  right. 


152  STOPPAGE  IN  TRANSITU. 

xaged.(g)     The  judges,  indeed,  of  our  courts,  have 
frequently  expressed  their  regret  that  the  laws  of 
England  were  not  equally  favourable  to  the  ven- 
dor of  goods  in  this  respect  with  those  of  some 
other  countries,  and  lamented  that  goods  which 
had  been  actually  delivered  after  the  consignee's 
*153    bankruptcy,  and  were  distinguishable  *from  the 
gereral  mass  of  his  effects,  should  ever  have  been 
considered  a  part  of  them,  and  that  there  should 
ever  have  been  any  necessity  for  the  numerous  and 
nice  distinctions  which  have  been  made  as  to  the 
continuance  and  determination  of  the  transitus.(A) 
2.  By  what  description   of  persons,   and  under 
what  nature  of  contract  the  right  may  be  exercised. 
fameS      Wherever  the    consignment  is  made  under  a 
sarythat  contract  for  sale  on  credit,  and  the  person  who 

the   par-  . 

ties         makes  it  stands  in  the  relation  of  vendor  to  the 
stand  in  consignee  of  the  goods,  he  is  capable  of  exercising 
tfcm    of the  rignt  °f  stoppage  in  transitu  upon  them,  in  the 
Indd°r     event  °f  the  bankruptcy  or  insolvency  of  the  con- 
dee,        signee  ;  nor  is  the  capacity  of  exercising  this  right 
confined  to  cases  in  which  the  contract  is  express- 
ly for  sale,  or  where  the  consignor  stands  in  every 
point  of  view  in  the  character  of  vendor ;  for  it 
extends  to  every  case  in  which  the  contract  is  in 
effect  a  sale,  and  the  consignor  substantially  the 
*  1  **t    vend°r  °f  the  goods  ](i)  and  therefore  where  a 

(g-)  Northey  v.  Field,  2  Esp.  R.  613.     Scott  v.  Pettit,  3  Bos.  &  Pul. 
469.     Hammond  v.  Anderson,  1  N.  R.  69. 

(A)  Snce  v.  Prescott,  1  Alk.  245.     ftfgUa  v.  Usherwood,  1  East,  515. 

v.  v    Hall,  2  East,  117-  Scott  v.  Pettit,  3  Bos.  &  Pul.  471. 
,  i)  Bnee  v.  Pretpott,  1  Atk   245-     Walker  v.  Woodbridge,  Cooke  B. 


9TOPPAGE  IN  TRANSITU.  154 

factor  or  agent,  by  the  order  of  his  principal,  pur- 
chases goods  for  him,  and  consigns  them  to  him  on 
credit,  with  an  additional  charge  on  account  of 
commission,  making  himself  liable  to  the  original 
vendor  in  the  first  instance,  and  no  privity  existing 
between  such  vendor  and  the  principal,  the  factor 
or  agent  will  be  so  far  considered  as  the  vendor  of 
the  goods  to  the  principal,  as  to  be  entitled  to  stop 
them  in  transitu,  upon  the  insolvency  or  bankruptcy 
of  the  latter,  though  he  may  not,  perhaps,  be  con- 
sidered as  standing  in  that  relation  for  all  purposes. 
This  was  decided  in  the  case  of  Feize  v.  Wray,  3 
East,  93.  the  facts  of  which  were  these  :  Browne, 
a  trader  in  London,  gave  an  order  to  Fritzing,  his 
correspondent  at  Hamburgh,  to  purchase  and  ship 
for  him  a  quantity  of  goods.  Fritzing  accordingly 
purchased  the  goods  of  other  merchants,  (who 
were  strangers  to  Browne,  and  had  no  correspon- 
dence or  account  with  him,)  and  shipped  them  on 
board  a  general  ship,  *on  the  account  and  risk  of  *  155 
Browne ;  the  bill  of  lading  was  filled  up  to  the  or- 
der of  Browne,  and  Fritzing  drew  bills  of  exchange 
upon  him  for  the  price  of  the  goods  and  of  his  own 
commission  for  purchasing  them,  which  were  ac- 
cepted, but  not  paid  by  Browne,  he  becoming 
bankrupt  before  the  arrival  of  the  goods ;  upon 
hearing  which  Fritzing  authorized  his   agent  in 

L.  394.  D'Aquila  v.  Lambert,  Ambl.  399  Inglis  v.  Usherwood,  1  East. 
515.  Feize  v.  Wray,  3  East,  93.  Bohtlingk  v.  Inglis,  3  East,  381.  In 
ill  these  cases  the  consignors  were  not  the  original  vendors,  but  pur- 
ahasers  for  the  consignee  ;  but  they  were  considered,  in  the  language 
of  L«rd  Henley,  as  substantially  vendors  to  the  consignee. 


155  STOPPAGE  IN  TfUESITU. 

England  to  obtain  possession  of  the  goods  on  their 
arrival,  which  he  accordingly  did.  An  action  of 
trover  being  afterwards  brought  by  the  assignees  of 
Browne  against  the  agent  of  Fritzing,  to  recover 
the  value  of  the  goods,  it  was  contended  on  the 
part  of  the  plaintiff,  that  the  right  of  stoppage  in 
transitu  did  not  attach  in  this  case,  because  Browne 
must  be  considered  as  the  principal  for  whom  the 
goods  were  originally  purchased,  and  Fritzing  no 
more  than  his  factor  or  agent,  purchasing  them  on 
his  account ;  and  that  the  right  extended  only  to 
the  case  of  vendor  and  vendee  :  but  Lawrence,  J. 
said,  "  if  that  were  so,  it  would  nearly  put  an  end 
to  the  application  of  that  law  in  this  country  ;  for 
I  believe  it  happens  for  the  most  part  that  orders 
come  to  the  merchants  here  from  their  correspon- 
dents abroad,  to  purchase  and  ship  merchandize  to 
156  them  ;  the  merchants  *here,  upon  the  authority  of 
those  orders,  obtain  the  goods  from  those  whom 
they  deal  with  ;  and  they  charge  a  commission  to 
their  correspondents  abroad,  upon  the  price  of  the 
commodity  thus  obtained.  It  never  was  doubted 
but  that  the  merchant  here,  if  he  heard  of  the 
failure  of  his  correspondent  abroad,  might  slop  the 
goods  in  transitu.  But  at  any  rate,  this  is  a  case 
between  vendor  and  rendee ;  for  there  was  no  privity 
between  the  original  owner  of  the  goods  and  the 
bankrupt;  but  the  property  may  be  considered  as 
having  been  first  purchased  by  Fritzing,  and  again 
sold  to  Browne  at  the  first  price,  with  the  addition 
i»f  bis  commission  upon  it.  He  then  became  the 
vendor  a9  to  Browne,  and  consequently  had  aright 


STOPPAGE  liN  TRANSITS  156 

to  stop  the  goods  in  transitu."  The  rest  of  the 
court  agreed  with  Lawrence,  J.  that  the  assignees 
were  not  entitled  to  recover. 

No  attempt  appears  to  have  been  made  to  set 
up  a  distinction  with  respect  to  the  right  of  stop- 
page in  transitu,  in  any  of  the  cases  where  the 
purchase  was  made  through  the  intervention  of  an 
agent,  (excepting  the  preceding  case  of  Feize  v. 
Wray,)  between  a  case  in  which  the  original  ven- 
dor was  named  by  the  principal,  and  a  case  where 
the  purchase  is  *made  of  an  entire  stranger  to  him,  *  157 
and  from  the  language  of  Grose  and  Lawrence, 
Js.  in  Feize  v.  Wray,  it  seems  that  if  it  had  been 
necessary  in  that  case  to  decide  the  validity  of 
that  distinction,  it  would  have  been  determined  to 
be  without  any  foundation  in  law. 

A  principal  who  consigns  goods  to  his  factor  on 
credit  is  entitled  to  stop  them  before  they  come 
into  the  possession  of  the  latter,  upon  his  becom- 
ing bankrupt  or  insolvent,  whether  he  be  consi- 
dered in  the  light  of  a  vendor,  or  not ;  for  if  he  be 
considered  in  that  light,  he  is  entitled  to  exercise 
the  right  in  common  with  all  vendors  ;(e)  and  if 
he  be  not  considered  in  that  light,  the  property  is 
not  devested  out  of  him  by  the  consignment,  and 
even  if  they  were  delivered  could  only  be  retained 
by  the  assignees  of  the  factor  apon  the  ground  of 
lien,  or  of  their  being  of  such  a  nature  as  not  to  be 

(«?)  Wright  v    Campbell.  4  Burr.  2047-     Kinlock  v.  Oraicr,  "  T    R 
119 


157  STOPPAGE  IN  TRANSITU. 

distinguishable  from  the  general  mass  of  the  bank- 
rupt's property.f/J 

158  *It  seems  that  a  person  who  consigns  money  to 
another  in  advance  on  any  particular  account,  de- 
scribing it  to  be  sent  for  such  purpose,  is  entitled 
to  exercise  the  right  of  stoppage  in  transitu  upon 
it  in  the  event  of  the  consignee's  bankruptcy  or 
insolvency ;  (though  the  former  were  indebted  to 
the  latter  upon  the  general  balance  of  accounts,) 
as  well  as  the  consignor  of  goods  of  any  other  de- 
scription ;  for  the  consignor  of  money  may  be  con- 
sidered in  effect  as  the  vendor  of  it  to  the  con- 
signee, from  whom  he  is  to  receive  an  equivalent 
in  return  for  it  :(g)  but  if  the  money  sent  were  a 
general  remittance,  and  not  described  to  be  made 
on  any  particular  account,  it  has  been  decided  that 
it  cannot  be  stopped.(/*J 

A  person  who  consigns  goods  to  another  to  be 
sold  on  the  joint  account  of  himself  and  the  con- 
signee, is  likewise  so  far  considered  in  the  light  of 
a  vendor  to  the  consignee,  that  he  may  exercise 

159  the  *right  of  stoppage  in  transitu  in  the  event  of 
the  latter's  bankruptcy  or  insolvency.(i) 

(/)  Qodfi  ey  v  Furzo,  S  Peere  Wms.  185.  Ex  parte  Dumas,  1  Atk. 
232.  2  Ves.  582.  S.  C  A  principal  may  recover  his  goods  in  an  action 
of  trover,  if  they  remain  unsold  in  the  hands  of  his  factor  at  the  time 
of  the  latter's  bankruptcy,  L'Apostre  v.  Le  Plaistrier,  1  Peere  Wms. 
?ltf.  or  if  they  are  sold  at  that  time,  but  not  paid  for  to  the  factor,  and 
his  assignees  afterwards  receive  the  money,  the  principal  may  recover 
it  from  them  in  an  action  for  money  had  and  received.  Scott  r.  Sur- 
man,  Willes,400. 

(/<■)  Din.  Ld.  Kenyon,  Smith  v.  Howies,  1  Esp.  It.  578.. 

(A)  Smith  v.  H  >wles,  l  ".  ;-.  it  ji'S. 

(i)  Newsoiii  v.  Thornton,  0  East,  17 


STOPPAGE  IN  TRANSITU-  159 

But  tne  benefit  of  that  right  does  not  extend  to 
cases  in  which  the  parties  cannot  be  considered  as 
standing  in  the  relation  of  vendor  and  vendee  to 
each  other,  either  actually  or  substantially ;  and, 
therefore,  where  there  is  a  contract  for  the  sale  of 
goods  immediately  between  the  principal  and  the 
vendor,  and  the  factor,  or  agent  is  merely  a  surety 
for  the  price,  he  cannot  stop  the  goods  in  transitu 
upon  the  bankruptcy  or  insolvency  of  his  principal. 
This  was  decided  in  the  case  of  Siffken  and  an- 
other, assignees  of  Browne,  a  bankrupt,  v.  Wray, 
6  East,  371.  the  facts  of  which  were  these  :  Browne, 
a  merchant  in  London,  ordered  goods  to  be  shipped 
to  him  by  Dubois  and  Co.  his  correspondents  at 
Dantzic,  directing  them  to  draw  for  the  amount  on 
Fritzing  at  Hamburgh,  (who  had  agreed  to  accept 
bills  on  receiving  a  commission  on  the  amount,) 
and  to  transmit  the  bills  of  lading  and  invoices  to 
Fritzing,  who  was  to  forward  them  to  Browne,  in 
London.     The  goods  were  accordingly  shipped, 
and  Fritzing  accepted  the  bills,  and  on  the  receipt 
of  the  bills  *of  lading,  (which  were  made  out  to    *  169 
the  order  of  the  shippers  and  not  endorsed,)  from 
Dubois  and  Co.  transmitted  them  to  Browne,  who 
received  them  together  with  the  invoices  and  letter 
©f  advice  five  days  after  he  had  committed  an  act 
of  bankruptcy.     Fritzing's  acceptances  were  af- 
terwards dishonoured,  and  Dubois  and  Co.  were 
consequently  obliged  to  retire  and  take  up  the  bills 
of  exchange.     Wray,  the  agent  of  Fritzing  in  Lon- 
don, procured  the  bills  of  lading  from  Browne, 

IS 


160  STOPPAGE  IN  TRANSITU. 

upon  an  undertaking  that  he  would  dispose  of  the 
goods  on  their  arrival  to  the  best  advantage,  and 
apply  the  proceeds  to  the  discharge  of  the  bills 
drawn  against  them,  and  having  afterwards  obtain- 
ed possession  of  the  goods  on  their  arrival,  sold 
them,  and  paid  the  proceeds  into  the  court  of  chan- 
cery, to  abide  the  event  of  an  action  directed  by 
that  court  to  be  brought  by  the  assignees  of  Browne 
against  Wray.  Dubois  and  Co.  having  been  ap- 
prized of  what  was  done  by  Wray,  wrote  a  letter 
signifying  their  approbation  of  his  conduct,  and 
claiming  the  proceeds  of  the  goods.  The  action 
directed  by  the  court  of  chancery  having  been 
brought,  the  court  of  king's  bench  were  of  opinion 
161  that  the  assignees  of  Browne  were  entitled  to  *the 
proceeds,  because  Fritzing  did  not  stand  in  the  re- 
lation of  vendor  of  the  goods  to  Browne  the  bank- 
rupt, but  was  merely  a  surety  for  the  price,  and 
consequently  was  not  entitled  to  stop  them  in  tran- 
situ; and  though  Dubois  and  Co.  were  the  real 
vendors  of  the  goods,  yet  Wray  could  not  be  con- 
sidered as  their  agent,  in  this  transaction,  not  hav- 
ing received  any  authority  from  them  until  after 
he  had  taken  possession  of  the  goods  ;  and  that 
even  supposing  him  to  have  been  their  agent  be- 
fore, yet  there  was  no  adverse  taking  possession  of 
the  goods,  they  having  been  taken  under  an  ami- 
cable agreement  with  Browne  after  his  bank- 
ruptcy. 

In  conformity  to  (he  general  rule  that  none  but 
those  who  stand  in  the  character  of  vendors  can 
exercise  the  right  of  stoppage  in  transitu,  a  per- 


STOPPAGE    IN    TRANSITU.  161 

son  who  has  merely  a  lien  upon  goods,  for  work 
done  upon  them,  or  trouble  or  expense  incurred 
about  them  in  the  course  of  his  trade,  cannot  stop 
them  In  their  transit  to  the  owner,  for  the  satisfac- 
tion of  his  hen.(k) 

Though  the  consignment  of  the  goods  must  be  "0c^ssf£ 
on  credit,  at  least  for  some  part  of  the  price,  to  en-  ry  that 
title  the  consignor  to  *stop  them  in  transitu  ;  yet    *  \Q2 
while  any  part  of  it,  however  small,  remains  due,  si^J- 
he  is  at  liberty  to  exercise  the  right,  and  therefore  should 
the  circumstance  of  the  vendee  having  paid  in  part  crtdit. 
for  the  goods,(7)  or  of  the  vendor's  being  indebted 
to  him  in  part  of  the  V3\ue,(m)  will  only  have  the 
effect  of  diminishing  the  vendor's  lien  pro  tanto  on 
the  goods,  when  he  has  regained  the  possession  of 
them,  and  not  of  *defeating  his  right  of  resuming    *  163 
that  possession,  before  actual  delivery  to  the  ven- 

(k)  Sweet  v.  Pym,  1  East,  4.  and  see  Butler  v.  Wolcott,  2  N.  R.  64. 

(/)  Hodgson  v.  Loy,  7  T.  R.  440.     Feize  v.  Wray,  3  East,  93. 

(wj)  From  the  cases  of  Wiseman  v.  Vandeput,  9  Vern.  203.  Hodgson 
v.  Loy,  7  T.  R.  440.  and  Feize  v.  Wray,  S  East,  93.  it  is  clear  that  the 
vendor's  being  indebted  to  the  vendee  in  part  of  the  price  of  the  goods 
consigned  will  not  defeat  the  right  of  the  former  to  stop  in  transitu  ; 
but  it  is  not  equally  clear  whether  the  vendor  can  exercise  that  right, 
where  he  is  indebted  to  the  vendee  upon  the  general  balance  of  ac- 
count of  the  amount  of  the  price  of  the  goods.  In  Wiseman  v.  Van- 
deput, the  debt  due  from  the  vendor  to  the  vendee  was  ordered  to  be 
first  paid  ;  and  in  Hodgson  v.  Loy,  the  debt  due  to  the  vendee  was  al 
lowed  to  be  set-ofF.  A  distinction,  however,  was  made  by  Lord  Ken- 
yon,  in  Smith  v.  Bowles,  1  Esp.  R.  578.  between  a  consignment  on  a 
particular  account,  and  a  consignment  on  a  general  account,  the  former 
he  thought  might  be  countermanded  by  the  consignor,  though  he 
should  be  indebted  to  the  consignee  on  the  general  balance  of  account 
to  the  full  value  of  the  consignment,  but  the  latter  he  decided  could 
not ;  and  see  Kinlock  v.  Craig,  3  T.  R.  119 


163  STOPPAGE    IN    TRANSITU. 

dee  ;  and  though  where  the  whole  price  has  been 
actually  paid  by  the  vendee,  the  vendor  cannot  ex- 
exercise  the  right  of  stoppage  in  transitu  upon  the 
bankruptcy  or  insolvency  of  the  latter  ;  yet  the  cir- 
cumstance of  the  vendee  having  merely  made  him- 
self liable  to  pay  the  full  price,  by  the  acceptance 
of  bills  to  the  amount,  and  the   endorsement  of 
them  over  to  third  persons,  will  not  divest  the  ven- 
dor of  the  benefit  of  that  right  :(n)  and  if  such  bills 
should  be  proved  under  the  commission  of  bank- 
•  164    ruptcy  issued  against  *the  vendee,  it  will  only  be 
considered  as  a  payment  as  far  as  the  dividend  will 
go.(o) 
if  the      If  the  bill  of  lading  be  endorsed,  and  transmitted 
ment  be  by  the  consignor,  under  an  agreement,  and  in  trust 
demnTfy  to  indemnify  against  acceptances,  he  cannot  stop 
tionai"1'   ^ie  g°°ds  m  transitu,  while  the  trust  and  object  of 
the  consignment  remain  unsatisfied,  nor  will  the 
master  of  the  vessel  in  which  they  are  conveyed  be 
justified  under  such  circumstances  in  redelivering 

(n)  D'Aquila  v.  Lambert,  Ambl.  399.  Lickbarrow  v.  Mason,  2  T.  R. 
63.  In  Kinlock  v.  Craig-,  3  T.  R.  119.  the  consignee  who  was  a  factor 
had  accepted  bills  to  the  amount  of  the  purchase  money,  and  both  were 
bankrupts:  Ashurst,  J.  in  delivering  the  opinion  of  the  court,  said,  "It 
i«  contended  that  the  consignor  has  no  right  to  stop  the  goods  in  tran- 
situ, where  the  value  of  them  has  been  paid.  I  admit  the  position  to 
be  true  as  between  consignor  and  consigmee  :  but  the  facts  of  the  case 
do  not  admit  of  the  application  of  it ;  for  they  have  not  been  paid  for, 
and  there  is  a  great  difference  between  payment  and  a  liability  to  pay. 
In  every  instance  where  the  goods  arc  sent  in  the  way  of  sale,  the  party 
to  whom  they  are  sent  is  liable  to  pay  :  but  till  he  has  paid,  in  case  of 
hW  failure,  the  owner  may  stop  them  iji  transitu.  And  see  Feize  v. 
Wtuy,  3  East,  93. 

(o)  Peize  v  Wray,  3  Fast.  '  . 


STOPPAGE    IN    TRANSITU.  164 

them  to  him  ;(/?)  and  if  the  delivery  is  to  be  made 
only  conditionally,  and  the  consignee  offers,  and  is 
in  a  situation  to  perform  the  condition,  the  con- 
signor cannot  stop  the  goods  in  their  transit  to  the 
consignee.  And  where  goods  are  consigned  in  a 
ship  chartered  on  the  account  and  at  the  risk  of  the 
consignee,  and  the  bill  of  lading  expresses  that  the 
delivery  is  to  order  or  assigns,  he  or  they  paying 
freight  for  the  said  goods  according  to  the  charter 
party  ;  the  goods  cannot  be  stopped  by  the  con- 
signor upon  the  consignee's  refusing  to  pay  the 
freight,  (that  being  merely  a  question  between  the 
captain  and  the  consignee,)  if  the  consignee  offers 
to  accept  bills  according  to  his  undertaking,  *and  is  *  166 
not  in  failing  circumstances. 

But  if  the  bill  of  lading  be  conditional,  and  the 
condition  unperformed,  the  consignor  may  under 
such  circumstances  exercise  the  right  of  stop- 
ping the  goods  during  their  transit  to  the  con- 
signee.^) 

(p)  Haille  v.  Smith,  1  Bos.  &  Pul.  563. 
(q)  Walley  v.  Montgomery,  3  East,  585 


*166  STOPPAGE    IN    TRANSITU. 


*CHAP.  II. 


How  the  stoppage  of  the  goods  is  to  be  effected. 


THE  courts  both  of  law  and  equity,  are  so 
strongly  inclined  to  favour  and  assist  the  consignor, 
in  regaining  the  possession  of  his  goods,  where  he 
is  not  paid  for  them,  and  the  consignee  is  from 
bankruptcy  or  insolvency  unable  to  pay  for  them, 
and  the  goods  are  still  in  their  transit  to  the  latter, 
that  they  will  allow  the  consignor  to  retake  the 
goods,  or  to  prevent  their  coming  into  the  hands  of 
the  bankrupt,  or  his  assignees,  by  any  means  which 
do  not  amount  to  felony,  or  absolute  violence. (a) 
167    Nor  is  it  necessary  in  every  case,  to  ^constitute  a 

(a)  This  doctrine  was  laid  down  in  Wiseman  v.  Vandeput,  2  Vein. 
203.  the  first  case  extant  upon  the  right  of  stoppage  in  transitu  ;  and 
again  in  Snee  v.  Prescot,  1  Atk.  245.  and  recognized  by  Lord  Kenvon 
in  the  subsequent  cases  of  Solomons  v.  Nissen,  2  T.  It.  674.  Barnes  v. 
Freehold,  6 T.  R.  80.  Smith  v.  Staples,  1  Esp.  578.  and  by  Grose,  J.  in 
Feize  v.  Wray,  3  East,  93.  and  see  Birkett  v.  Jenkins  cited  Cowp.  296. 
A  countermand,  however,  and  substitution  of  a  new  consignee  is  most 
easily  effected,  where  the  bill  of  lading  is  originally  made  for  delivery 
to  the  order  of  the  consignor  ;  because  in  that  case,  the  consignor  may, 
if  he  has  reason  to  suspect  the  failure  of  the  consignee,  or  is  afterwards 
apprised  of  il,  Bend  another  part  of  the  bill  of  lading  to  a  correspondent 
at  the  port  of  destination,  endorsed  in  blank,  or  for  delivery  to  him, 
Abbot,  357.  But  tlte  countermand  may  also  be  made  on  the  failure  of 
the  consignee,  if  he  ii  originally  named  in  the  body  of  the  bill  of  lading 
See  assignees  of  Burghail  v.  Howard,  1  Hen.  Bla.  365,  note  (o) 


STOPPAGE  IN  TRANSITU.  167 

stoppage  of  the  goods  sufficient  in  law  to  prevent 
them  from  being  distributable  under  the  commis- 
sion issued  against  the  consignee,  that  actual  pos- 
session should  be  taken  of  the  goods  by  the  con- 
signor, by  corporal  touch.      Thus  in  the  case  of 
Walker  v.  Woodbridge,  Co.  B.  L.  494.  where  the 
goods  were  sent  by  sea,  an  entry  of  them,  on  the 
part  of  the  consignor,  at  the  custom  house,  upon 
the  ship's  arrival  at  the  place  where  they  were  to 
be  landed,  in  order  to  pay  the  customs  for  them, 
was  considered  a  sufficient  assertion  of  his  right  to 
constitute  a  valid  stoppage.     In  the  case  of  Nor- 
they  and  Lewis,  assignees  of  Leyland  and  Cragg, 
v.  Field,  2  Esp.  R.  613.     A  claim  on  the  part  of 
the  consignors  was  held  sufficient.    In  that  case  a 
quantity  of  wine  was  consigned  to  Leyland  and 
Cragg,  and  after  the  arrival  of  the  vessel  on  board 
of  which  it  had  been  shipped,  but  pending  the 
twenty  days  *allowed  by  26  Geo.  3.  c.  5.  s.  4.  for    *  ig$ 
the  payment  of  the  duty,  the  consignees  became 
bankrupts.    After  the  expiration  of  the  twenty  days 
without  payment  of  the  duty,  the  wine  was  remov- 
ed into  the  king's  warehouse  pursuant  to  the  same 
statute,  by  which  it  is  allowed  to  remain  there 
three  months  ;  during  which  time  the  owner  may 
have  the  wine  on  paying  the  duty,  warehouse 
room,  &c.  but  if  not  paid  within  the  three  months, 
the  wine  is  then  to  be  sold.    The  day  before  the  ex- 
piration of  the  three  months,  the  agent  of  the  con- 
signors applied  for,  and  endeavoured  to  obtain  pos- 
session of  the  wine,  but  in  vain.     The  wine  was 
sold  by  public  sale  at  the  expiration  of  the  three 


168  STOPPAGE    IN    TRANSITU. 

months,  and  the  produce  which  remained  after  the 
deduction  of  the  duties,  &c.  paid  into  the  hands  of 
a  broker,  against  whom  the  assignees  of  the  con- 
signees brought  an  action  to  recover  it ;  and  Lord 
Kenyon,  before  whom  the  cause  was  tried,  was  of 
opinion  that  they  were  not  entitled  to  recover,  ob- 
serving that  the  courts  of  late  years  leaned  much 
in  favour  of  the  power  of  the  consignor  to  stop  his 
goods  in  transitu,  and  that  it  was  a  leaning  in  fur- 
therance of  justice.  And  though  Lord  Hardwicke 
had  been  of  opinion,  that  in  order  to  stop  goods  in 
16*9  ^transitu,  there  must  be  an  actual  possession  of 
them  obtained  by  the  consignor,  before  they  come 
into  the  hands  of  the  consignee,  that  rule  had  been 
since  relaxed  ;  and  it  was  now  held,  than  an  ac- 
tual possession  was  not  necessary  ;  that  a  claim 
was  sufficient  ;  and  to  that  rule  he  subscribed. 
In  the  present  case,  the  bankrupt  had  no  title  to 
the  actual  possession  until  the  duties  were  paid  j 
until  then,  they  were  quasi  in  custodia  legis  :  be- 
fore the  sale  the  agent  for  the  consignors  claimed 
and  endeavoured  to  get  possession  ;  and  that  was 
a  sufficient  stoppage  in  transitu  in  his  opinion,  to 
secure  the  rights  of  the  consignor.  The  doctrine 
laid  down  by  Lord  Kenyon  in  this  case,  was  after- 
wards recognized,  and  adopted  by  Lord  Ellenbo- 
r  >ugh,  in  that  of  Nix  v.  Olive,  sittings  at  Guildhall, 
Trin.  1805,  Abbott,  377. 

Where  the  goods  continue  in  the  hands  of  the 
carrier,  or  middleman,  a  demand  by  the  consignor 
has  been  repeatedly  held  to  be  equivalent  in  law  to 


STOPPAGE    IN    TRANSITU.  169 

an  actual  stoppage  of  the  goods.(6)  In  the  case  of 
Mills  v.  *Ball,  2  Bos.  k  Pul.  457.(c)  where  the  *170 
goods  remained  in  the  hands  of  a  wharfinger,  and 
the  consignor,  upon  information  from  the  consignee 
that  he  was  insolvent,  demanded  the  goods  of  the 
wharfinger  as  his  property,  and  gave  him  notice  not 
to  deliver  them  out  of  his  custody :  it  was  deter- 
mined by  the  court  of  common  pleas,  to  be  as  *suffi-  *  171 
cient  a  stoppage  of  the  goods  in  effect,  as  if  actual 
possession  had  been  taken  of  them  by  the  con- 
signor, and  that  the  wharfinger  having  upon  such 
demand  and  notice,  undertaken  not  to  deliver  the 
goods,  was  liable  to  an  action  of  trover  for  after- 

(b)  Snee  v.  Prescott,  1  Atk.  245.  D'Aquila  v.  Lambert,  Ambl.  399. 
Hoist  v.  Pownal,  1  Esp.  R.  240.  Bohtlingk  v.  Inglis,  3  East,  394. 
Though  a  claim  or  demand  is  a  sufficient  assertion  of  his  right  in  the 
consignor,  to  constitute  a  valid  stoppage  of  the  goods,  possession 
seems  necessary  on  the  part  of  the  consignee,  to  divest  the  consignor  of 
his  right  of  stoppage  in  transitu  ;  for  in  the  case  of  Northey  v.  Field,  3 
Esp.  R.  613.  just  cited  in  the  text,  a  prior  claim  was  made  on  the  part 
of  the  consignees,  which  was  held  ineffectual,  though  the  subsequent 
claim  of  the  consignor  was  determined  to  be  sufficient.  And  in  the 
case  of  Snee  v.  Prescott,  the  first  demand  on  the  captain  was  made  by 
Julian  and  Le  Blanc,  the  assignees  of  the  consignee,  and  not  by  Pres- 
cot,  the  agent  of  the  consignor  ;  and  that  the  demand  was  not  noticed, 
as  being  of  any  effect  in  divesting  the  vendor's  right  of  stopping  in 
transitu  ;  but  the  second,  made  by  Prescot,  was  considered  as  an  effec- 
tual exercise  of  that  right;  and  See  judgment  of  Lord  Ellenborough, 
Ch.  J.  Dixon  v.  Baldwin,  5  East,  175  Stoveld  v.  Hughes,  14  East,  308. 
and  see  post,  chap.  III.  note. (q) 

(c)  This,  it  should  be  observed,  is  rather  a  case  in  which  the  con- 
tract is  rescinded  by  the  mutual  consent  of  the  parties,  than  a  case  of 
stoppage  in  transitu,  which  must  be  adverse,  and  was  decided  on  the 
ground  that  the  consignee  had  countermanded  his  order  ;  see  judg- 
ment of  Lord  Alvanley  in  Scott  v.  Pettit,  3  Bos.  and  Pul  469. 

19 


171  STOPPAGE  IN  TRANSITU. 

wards  delivering  them  to  the  assignees  of  the  con- 
signee, contrary  to  his  undertaking-^^) 

A  stoppage  of  goods  either  by  an  agent  express- 
172  ly  authorized  for  that  purpose,(e)  *or  by  a  general 
agent,  not  particularly  authorized,  (if  the  act  of 
the  latter  be  afterwards  recognized  and  confirmed 
by  his  principal,^/)  will  be  as  valid  as  if  made  by 
the  consignor  himself.  But  a  stoppage  by  a  third 
person,  who  at  the  time  was  not  an  agent  of  the 
consignor,  and  has  received  no  authortity  from  him 
for  so  doing,  will  not  be  sufficient,  though  the  act 

(d)  Before  the  decision  of  Oppenheim  v.  Russel,  3  Bos.  and  Pul.  42. 
it  was  doubtful  whether  a  vendor  of  goods  could  maintain  an  action  of 
trover  against  the  carrier,  for  refusing  to  deliver  them  up  to  him,after  no- 
tice not  to  deliver  them  to  the  insolvent  vendee  ;  see  Mills  v.  Ball,  2  Bos. 
&.  Pul.  457.  It  is  clear,  however,  from  the  case  of  Oppenheim  v.  Russel, 
that  a  vendor,  who  has  a  right  to  stop  goods  in  their  transit  to  the 
vendee,  may  support  an  action  against  a  carrier,  who  after  having  the 
money  due  for  the  carriage  of  the  goods  tendered  him,  and  notice  given 
to  him  not  to  deliver  them  to  vendee,  refuses,  without  offering  any  con- 
ditions to  deliver  them  to  the  vendor.  But  it  seems  that  if  the  carrier 
should,  upon  reasonable  doubt,  refuse  to  deliver  up  the  goods  without 
further  authority,  or  until  the  circumstances  of  the  case  should  be  as- 
eertained,  his  conduct  wovdd  not  amount  to  a  conversion,  so  as  to  make 
him  liable  to  an  action  of  trover  by  the  vendor.  Diet.  Chambre,  J.  Mills 
v.  Ball,  2  Cos.  &  Pul.  457-  and  see  post.  Chap.  IV.  note  (r) 

O)  In  D'Aquila  v.  Lambert,  Aiubl.  399.  it  does  not  appear  whether  the 
agent  was  expresely  authorized  or  not,  but  his  claim  was  considered 
sufficient.  In  Hoist  v.  Pownal,  1  Esp  R.  240.  and  Mills  v.  Ball,  2  Boa 
St  Pul.  457.  the  goods  were  claimed  by  agents  particularly  authorized 
In  Lickbarrow  v.  Mason,  2  T.  It.  63.  the  goods  were  stopped  by  an 
agent  authorized  for  the  purpose,  and  no  objection  was  made  on  that 
ground. 

(/)  Fcize  v.  Wray,  3  East,  93.  in  which  case  the  claim  was  made  by 
an  agent  acting  under  a  general  power  of  attorney  from  the  vendor,  who 
afterwards  confirmed  Hi',  act  of  the  agent. 


STOPPAGE  IN  TRANSITU.  172 

of  such  person  be  afterwards  adopted,  and  ap- 
proved of  by  the  consignor;  and  to  render  are- 
sumption  by  the  consignor  or  his  agent,  effectual  in 
law,  it  must  be  effected  with  an  intention  of  stop- 
ping the  goods  in  transitu,  and  adversely  to  the 
consignee ;  and  if  it  be  made  under  an  amicable 
agreement  with  the  latter,  to  sell  the  goods,  and 
apply  the  proceeds  in  discharge  of  bills  drawn  by 
the  consignor  for  the  price,  it  will  be  wholly  inva- 
lid against  the  assignees  *of  the  bankrupt  con-  *  173 
signee.  These  two  points  were,  (as  has  been  al- 
ready stated)  the  grounds  upon  which  the  case  of 
Siffken  v.  Wray,  6  East,  371.  was  decided,  the 
facts  of  which  have  been  also  before  detailed. 


'174  STOPPAGE  IN  TRAESITU. 


*CHAP.  HI. 


When  the  Stoppage  may  be  effected. 


HAVING  shown  by  what  persons,  under  what 
nature  of  contract,  and  in  what  manner  the  right 
of  stoppage  in  transitu  may  be  effected,  it  remains 
only  to  explain  when  it  may  be  effected ;  and  first 
it  is  to  be  observed  that  this  right  can  only  be  ex- 
ercised where  the  consignee  refuses,  or  is  unable, 
from  the  situation  of  his  circumstances,  to  fulfil 
the  conditions  of  the  contract ;  for  the  property  is 
vested  in  the  vendee  by  the  contract,  subject  only 
to  be  revested  in  the  vendor  under  the  existence  of 
such  circumstances.fflj  Secondly,  as  the  right  of 
stoppage  in  transitu  can  only  be  exercised  while 
the  goods  are  in  transitu,(*)  and  before  they  are 
lawfully  aliened  by  the  consignee  to  a  bona  fide 
purchaser,(6)  the  rest  of  this  chapter  will  be  oc- 
cupied in  showing  under  what  circumstances  the 
1 75  transitus  may  be  considered  as  continuing,  *or  de- 
termined, and  the  detail  of  the  circumstances  un- 
der which  property  in  transitu  may  be  considered 

{a)  Walley  v.  Montgomery,  3  East,  585.  opinion  of  Buller,  J.  6  East» 
-17,  B.  in  notis  ;  ami  Bee  ante,  Chap.  I.  (A)  &  (r) 
(*)  Coxev.  Harden,  4 East,  211 

(/>)  Pool  Chap  IV. 


STOPPAGE  IN  TRANSITU,  175 

as  lawfully  and  bona  fide  aliened,  will  be  reserved 
to  the  fourth  and  last  chapter. 

When  the  transitus  is  to  be  considered  as  continuing 
or  determined. 

The  transitus  of  the  goods  can  only  be  deter- 
mined either  by  actual  delivery  of  the  goods,  or 
what  is  equivalent  in  law  to  an  actual  delivery  of 
them,  to  the  vendee  or  his  representative.(c)  It  is, 
therefore,  to  *be  inquired  first,  what  mode  of  deli- 
very to  the  vendee,  or  assumption  of  possession  by  *  17ft 
him,  or  his  representative,  of  the  goods,  is  suffi- 
cient, or  insufficient  to  determine  the  transitus; 


(c)  See  judgments  of  Ashurst  and  Buller,  Js.  Ellis  v.  Hunt,  3  T.  R. 
464.  and  of  Lawrence,  J.  delivering  the  judgment  of  the  court,  Boht- 
lingk  v.  Inglis,  3  East,  381.  and  ofRooke,  J.  Oppenheim  v.  Russel,3  Bos. 
&  Pul.  42.  and  see  Dixon  v.  Baldwin,  5  East,  175.  and  next  note.  It 
does  not  appear  that  the  vendor's  right  to  stop  the  goods  in  transitu 
can  be  defeated  by  any  other  means  than  by  a  delivery  to  the  vendee  or 
his  representative;  in  the  case  of  Oppenheim  v.  Russel,  it  was  argued 
l>y  counsel  that  if  the  goods  consigned,  previous  to  their  delivery  to  the 
consignees,  had  been  seized  by  the  sheriff  under  a  fi.  fa.  in  satisfaction 
ef  a  debt  due  from  them,  the  consignors,  could  not,  by  virtue  of  their 
right  to  stop  'in  transitu,  have  reclaimed  the  goods  from  the  sheriff, 
unless  notice  had  been  given  to  the  sheriff  at  the  time  he  seized  them, 
of  their  claim.  But  Ld.  Alvanley  expressed  great  doubt  whether  the 
sheriff  could  make  them  absolutely  the  goods  of  the  consignee  by 
stopping  them  before  they  came  to  his  hands  ;  and  see  Richardson  v. 
Goss,  3  Bos.  &  Pul.  119.  It  has  been  expressly  determined  that  a  con- 
signor's right  to  stop  in  transitu  cannot  be  devested  by  the  seizure  of 
the  goods  by  a  creditor  of  the  consignee  under  process  of  foreign  at- 
tachment, the  vendors  being  the  elder  and  preferable  lien.  Smith  v. 
Goss,  1  Campb.  R.  282.  Upon  the  same  principle  the  carrier's  lien  for 
a  general  balance  due  from  the  consignee  cannot  be  brought  forward  to 
defeat  the  consignor's  right  of  stoppage  in  transitu.  Butler  v.  Wool- 
cot,  2  N.  E.  «4. 


176  STOPPAGE  IN  TRANSITU. 

and  secondly,  at  what  time  that  possession  may  be 
taken  by  the  vendee,  or  his  representative. 

1st.  What  mode  of  delivery  to,  or  assumption  of 
possession  by  the  vendee,  or  his  representative,  is  suf- 
ficient to  determine  the  transitus. 

There  may  be  a  sufficient  delivery  in  law  to  de- 
termine the  transitus,  and  devest  the  vendor  of  his 
right  of  stopping  the  goods,  without  their  coming 
to  the  corporal  touch  of  the  vendee,  or  of  his  re- 
177  presentative.f^J  The  delivery  to  the  vendee  *of 
the  key  of  the  vendor's  warehouse  in  which  the 
goods  are  deposited,  seems  to  be  an  effectual  de- 
livery of  them  for  this  purpose^/j  x\nd  if  the 
goods,  after  being  sold,  remain  in  the  vendor's 
warehouse,  and  the  vendee  pay  him  warehouse 
rent  for  them,  such  payment  will  be  a  sufficient 
possession  in  the  vendee,  to  put  an  end  to  the  ven- 
dor's right  of  stopping  them  in  transitu.^    And 

(d)  In  Hunter  v.  Deal,  3  T.  R.  466.  Lord  Mansfield  laid  it  down  that 
the  goods  were  in  transitu  until  they  came  to  the  corporal  touch  of  the 
vendee.  But  in  Ellis  v.  Hunt,  3  T.  R.  464.  Ld.  Kenyon,  J.  said,  that 
**  this  was  merely  a  figurative  expression,  and  had  never  been  literally 
adhered  to."  And  again,  in  Wright  v.  Lawes,  4  Esp.  R.  82.  the  same 
learned  Ch.  J.  observed,  "  I  once  said  that  to  confer  a  property  on  the 
consignee  a  corporal  touch  was  necessary  :  I  wish  the  expression  had 
never  been  used,  as  it  says  too  much."  And  in  Dixon  v.  Baldwin,  Ld. 
Ellenborough  observes,  "  as  to  Hunter  v.  Beal,  in  which  it  is  said  that 
the  goods  must  come  to  the  corporal  touch  of  the  vendee,  in  order  to 
oust  the  right  of  stopping  in  transitu,  it  is  a  figurative  expression,  and 
rarely,  if  ever,  strictly  true  ;"  and  see  cases  ante,  note  (c) 

(/)  In  Bills  v,  Hunt,  3 T.  R.  464,  Ld  Kenyon  said,  "there  may  be 
an  actual  delivery  of  the  goods  without  the  bankrupt's  seeing  them,  as 
a  delivery  of  the  key  of  the  vendor's  warehouse  to  the  purchaser;  and 
ee  Copland  v.  Stein,  8  T.  R.  199. 

(  f)  hurry  v  Mangles,  ICampfc,  452      In  the  subsequent  case  of 


STOPPAGE  IN  TRANSITU.  *178 

where  complete  possession  *of  the  goods  cannot 
be  taken,  from  the  nature  or  situation  of  them,  the 
exercise  of  such  acts  of  ownership  as  the  circum- 
stances of  the  case  will  permit,  seems  to  be  suffi- 
cient to  determine  the  transitus.  Thus  in  the  case 
of  Ellis  v.  Hunt,  3  T.  R.  464.  a  demand  of  the 
goods,  and  putting  a  mark  upon  them  by  the  re- 
presentative of  the  vendee,  when  they  had  arrived 
at  the  end  of  their  journey,  was  held  sufficient  to 
put  an  end  to  the  transitus.  The  facts  of  the  case 
were  as  follow:  Moore,  a  tradesman  in  London, 
ordered  a  quantity  of  files  from  Ellis  and  Co.  ma- 
nufacturers at  Sheffield,  and  the  files  were  accor- 
dingly packed  in  a  cask,  and  sent  by  a  waggon  di- 
rected to  Moore,  in  London  ;  while  the  goods  were 
upon  their  journey,  Moore  became  a  bankrupt, 
and  on  their  arrival  in  London,  and  while  they  re- 
mained at  the  inn,  the  goods  were  attached  by 
Messrs.  Fenton  and  Co.  creditors  of  the  bankrupt,  *  1 79 
by  process  of  foreign  attachment ;  after  which  the 
provisional  assignee  under  Moore's  commission 
demanded  the  goods  of  the  carrier,   and  put  his 

Harman  v.  Anderson,  2  Campb.  243,  it  was  decided  that  the  purchasers 
having  lodged  an  order  (which  he  had  received,  tog-ether  with  the  in- 
voice from  the  vendor  of  the  goods)  with  the  wharfinger  in  whose 
warehouse  they  were  lying  at  the  time  of  the  sale,  to  deliver  them,  and 
the  wharfinger's  having  transferred  them  in  his  books  into  the  name  of 
the  purchaser,  was  sufficient  to  devest  the  vendor's  right  of  stopping 
in  transitu,  and  that  the  wharfinger  was  after  that  bound  to  hold  them 
as  the  agent  of  the  purchaser.  And  it  was  said  by  lord  Ellenborough, 
delivering  the  opinion  of  the  court,  that  the  bare  lodgment  of  the  de- 
livery note  with  the  wharfinger,  without  an}'  tranfer  in  his  books,  would 
have  been  sufficient  to  produce  the  same  effect. 


179  STOPPAGE  IN  TRANSITU. 

mark  upon  the  cask,  but  did  not  take  the  goods 
away.  A  few  days  afterwards  Ellis  and  Co.  the 
vendors,  who  had  previously  drawn  a  bill  upon  the 
bankrupt,  which  was  never  paid,  wrote  a  letter  to 
the  carrier,  directing  him,  in  case  the  goods  were 
not  delivered,  to  keep  them  in  his  warehouse,  as 
they  had  heard  that  Moore  was  become  a  bankrupt. 
The  goods  being  delivered  up  to  the  assignees  of 
Moore  when  the  attachment  was  withdrawn,  an 
action  of  trover  was  brought  against  them  and  the 
carrier  by  Ellis  and  Co.  and  the  court  decided  that 
the  ffoods  were  not  in  transitu  at  the  time  when 
Ellis  and  Co.  the  vendors,  wrote  to  countermand 
the  delivery  of  them.  The  provisional  assignee, 
who  stood  in  the  place  of  the  bankrupt,  having, 
before  that  was  done,  put  his  mark  upon  the  cask, 
and  when  the  goods  were  thus  marked,  they  were 
delivered  to  the  commissioners  as  far  as  the  cir- 
cumstances of  the  case  would  permit  ;  for  being 
under  attachment,  the  assignee  could  not  then  take 
them  away.  And  even  if  corporal  touch  were  ne- 
180  cessary  to  defeat  the  vendor's  *right,  it  took  place. 
And  that  the  bankruptcy  of  the  consignee,  which 
the  plaintiff's  counsel  had  argued  to  be  of  itself  a 
countermand  of  the  goods,  had  never  been  decided 
to  have  that  eflcctfA) 

It  seems  that  where  the  goods  when  sold  are  ly- 
ing at  a  wharf,  and  the  vendor  has  given  an  order 
to  the  wharfinger  to  deliver  them  to  the  vendee,  the 

(7i)  That  bankruptcy  is  no  countermand,  see  Scott  v.  Pcltit,  3  Bos.  8t 
Pul    1G9-    Bnhtlingk  v.  Schneider,  3  Esp.  R.  58. 


STOPPAGE  IN  TRANSITU.  180 

mere  weighing  them  by  the  vendee  would  be  a 
sufficient  assumption  of  possession  to  divest  the 
vendor's  right  of  stopping  thcm.(i) 

A  delivery  of  possession  to  the  vendee  or  his  re- 
presentative of  part  of  the  goods  sold  by  an  entire 
contract,  will  be  considered  a  sufficient  delivery  to 
determine  the  transitus  of  the  whole.  Thus  where 
a  merchant  at  a  foreign  port  shipped  7061  bushels 
of  wheat  by  the  order,  and  for  *the  account  of  a  *  181 
merchant  in  this  kingdom,  to  be  paid  for  at  a  future 
day,  and  several  bills  of  lading  were  accordingly 
signed  by  the  master  of  the  ship,  one  of  which  was 
immediately  transmitted  to  the  consignee,  who 
before  the  arrival  of  the  ship  at  the  place  of  desti- 
nation, sold  the  goods  and  endorsed  the  bill  of 
lading  to  a  third  person,  and  after  the  arrival  of  the 
ship,  and  a  delivery  of  800  bushels  of  the  wheat  to 
the  agent  of  the  endorsee  of  the  bill  of  lading  ;  the 
consignee  became  bankrupt  without  having  paid 
the  consignor  the  price  of  the  goods.  The  court 
were  of  opinion,  that  the  transitus  was  ended  by 
the  delivery  of  the  800  bushels  of  wheat,  which 
must  be  taken  to  be  a  delivery  of  the  whole,  there 
appearing  no  intention,  either  previous  to,  or  at  the 
time  of  the  delivery,  to  separate  part  of  the  cargo 

(?)  In  Hammond  v.  Anderson,  1  N.  R.  69.  Chambre,  J.  observes  : 
<f  this  was  a  much  stronger  case  than  that  of  Slubey  v  Hey  ward  ;  that 
proceeded  upon  the  principle  that  a  delivery  of  part,  where  the  con- 
tract was  entire,  was  a  delivery  of  the  whole  ;  here  there  u-as  an  actual 
delivery  of  the  ivhole.  The  bankrupt  had  actual  manual  possession  of 
every  article  ;  and  having  weighed  them  all  took  upon  himself  to  sepa- 
rate them.     And  see  ante,  note  (g). 

20 


181  STOPPAGE  IN  TRANSITU. 

from  the  rest.(j)  This  decision  was  afterwards 
confirmed  by  the  same  court  in  the  case  of  Ham- 
mond v.  Anderson,  1  Bos.  &  Pul.  N.  R.  69.(&) 
*182  Where  130  bales  of  bacon  lying  at  a  wharf  hav- 
ing been  sold  for  an  entire  sum,  to  be  paid  for  by  a 
bill  at  two  months  ;  an  order  was  left  by  the  ven- 
dor with  the  wharfinger  to  deliver  them  to  the  ven- 
dee, who  went  to  the  wharf  and  weighed  the 
whole,  and  took  away  25  bales,  and  then  became 
insolvent ;  upon  hearing  which  the  vendor  within 
ten  days  from  the  time  of  the  sale,  ordered  the 
wharfinger  not  to  deliver  the  remainder.  And  it 
appeared  that  by  the  custom  of  trade,  where  the 
goods  sold  continued  to  lie  at  the  wharf  after  the 
sale,  the  charges  of  warehousing  were  to  be  paid 
by  the  vendor  for  fourteen  days,  at  the  expiration 
of  which  time,  and  not  before,  they  were  to  be  en- 
tered in  the  books  of  the  wharfinger  in  the  name 
of  the  vendee.  And  it  was  decided  that  the  con- 
tract being  entire,  and  actual  possession  having 
been  certainly  taken  of  part  of  the  goods,  the  pri- 
vilege of  stopping  in  transitu  could  not  attach  ; 
Heath,  J.  observing,  that  the  jury  were  of  opinion 
that  the  payment  of  the  warehouse  room  by  the 
vendor  was  a  mere  indulgence  given  to  the  ven- 
dee ;  and  Chambre,  J.  that  the  payment  of  the 
warehouse  room  by  the  vendor  could  not  make 

Ueyward,  2  II.  Bla.  504. 

parte   Gwynne,  12  Ves.  jun.  379.  and  Hanson  \ 
.   614.  and  Lord  Ellenbofbugh's  observations  upon  this 
Hughes,  1  1  East,  J08. 


STOPPAGE    IN    TRANSITU.  182 

any  difference.  The  vendor,  of  course,  charging 
just  so  much  more  as  would  pay  the  expense  *of  *133 
warehouse  room  :  and  that  if  the  expense  had  been 
paid  by  the  vendee,  it  would  not  make  a  delivery 
at  the  wharf  a  delivery  to  him  ;  nor  could  the  ven- 
dor avail  himself  of  the  expenses  being  paid  by 
him  to  prevent  a  delivery  to  the  vendee  operating 
as  such. 

And  if  a  delivery  of  the  whole  of  the  goods  be 
once  made  to  the  consignee  or  his  representative, 
the  consignor  cannot  resume  possession  of  them, 
though  the  bill  of  lading  was  for  delivery  to  the 
latter,  and  unendorsed,  and  the  bill  of  exchange 
drawn  for  the  price  has  been  dishonourecl.(/) 

Where  the  consignee  uses  the  warehouse  of  an 
agent  or  other  person  as  his  own,  and  there  is  no 
ulterior  or  more  complete  delivery  to  the  consignee 
in  view,  the  transitus  of  the  goods  will  be  consid- 
ered as  determined  by  the  delivery  of  them  at  such 
warehouse.  Accordingly  in  the  case  of  Leeds  v. 
Wright,  3  Bos.  &  Pul.  320.(m)  where  an  agent  hav- 
ing a  general  power,  either  to  send  the  goods  he 
purchased  on  to  his  principal,  or  to  such  market  as 
he  should  consider  most  beneficial,  *ordered  them  *  184 
to  be  sent  for  him  to  the  house  of  a  packer,  and 
upon  their  arrival  there,  went  and  had  some  of 
them  unpacked,  and  sent  away,  and  had  the  re- 
mainder repacked.     It  was  determined  that  sufti- 


(l)  Coxev.  Harden,  4  East,  211.  2  Smith's  It.  20.  S  C 

(m)  See  diet.  Chambre,  J.  Richardson  v.  Goss,  3  Bos.  and  Pul.  12" 


184  STOPPAGE    IN    TRANSITU. 

cient  had  been  done  to  put  an  end  to  the  transitus 
of  the  whole  of  the  goods. 

The  same  principle  was  again  recognized  by  the 
court  of  common  pleas  in  the  case  of  Scott  v.  Pet- 
tit,  3  Bos.  &  Pul.  469.  where  the  goods  had  been 
ordered  by  a  merchant  in  London,  of  Messrs.  Wal- 
lers of  Manchester,  and  forwarded  by  them  direct- 
ed to  him  at  the  Bull  and  Mouth  Inn,  on  the  16th 
of  March  1302.  On  the  23d  of  March  the  goods 
were  sent  from  the  Bull  and  Mouth  Inn  to  the 
house  of  a  packer,  not  in  consequence  of  any  or- 
ders respecting  those  particular  goods,  but  in  con- 
sequence of  a  general  order  from  the  consignee,  to 
send  all  goods  directed  to  him  to  the  packer's  house. 
On  the  11th  of  March  the  consignee  fwho  lived  in 
lodgings  and  had  no  warehouse  of  his  own)  abscond- 
ed, leaving  no  clerk  to  accept  goods  or  orders  for 
him.  On  the  arrival  of  the  goods  at  the  packer's 
house  they  were  booked  for  the  account  of  the  con- 
signor, and  the  packer  not  knowing  that  the  con- 
signee had  then  absconded,  and  not  having  any  di- 
185  rections  *from  him  respecting  the  goods,  caused 
them  to  be  unpacked  with  a  view  to  ascertain  of 
what  they  consisted.  On  the  31st  of  March, 
Messrs.  Wallers  having  learned  the  situation  of  the 
consignee's  affairs,  claimed  the  goods  from  the 
packer,  and  on  the  day  after  they  were  demanded 
by  the  assignees  under  the  commission  issued 
against  the  consignee,  to  whom  the  packer  (being 
indemnified  by  Messrs.  Wallers)  refused  to  deliver 
the  goods  :  Upon  which  an  action  of  trover  being 
brought  against  him   by  the  assignees  ;  the  court 


STOPPAGE  IN  TRANSITU;  185 

were  of  opinion  that  the  transitus  was  at  an  end 
by  the  delivery  to  the  packer  ;  for  if  the  delivery 
to  the  packer  were  not  to  be  considered  as  the 
place  of  delivery  to  the  consignee,  in  this  case, 
there  could  be  no  place  of  delivery  at  all,  he  hav- 
ing no  other  place  of  reception  for  the  goods  :  and 
it  would  be  a  greater  hardship  upon  the  creditors 
in  this  than  in  other  cases,  if  they  were  not  per- 
mitted to  resort  to  the  properly  in  the  hands  of  the 
packer,  as  the  bankrupt  could  have  no  stock  in  his 
own  possession,  and  his  creditors  probably  knew 
that  he  considered  the  warehouse  of  the  packer  as 
his  own,  and  that  the  goods  were  consigned  to  him 
there,  and  trusted  to  him  upon  the  credit  of  those 
goods,  *and  the  cases  in  which  the  transitus  of  *  1 8b 
goods  in  the  hands  of  wharfingers  and  packers,  had 
not  been  considered  at  an  end,  where  cases  in 
which  the  goods  only  remained  with  such  persons 
for  the  purpose  of  being  forwarded  to  the  con- 
signee. 

And  if  the  goods  be  deposited  in  a  warehouse, 
which  the  agent  of  the  consignee  has  hired  for  the 
purpose,  and  the  consignee  comes  and  exercises 
any  act  of  ownership  upon  them,  the  transitus  will 
be  sufficiently  determined  to  divest  the  consignor 
of  his  right  to  stop  the  goods,  though  it  is  intended 
that  they  shall  be  afterwards  forwarded  from  the 
first  place  of  deposit  to  the  consignee's  abode,  the 
ultimate  place  of  their  destination.  Thus  where 
Wright,  a  manufacturer  at  Norwich,  agreed  with 
Shevill  for  the  purchase  of  some  pipes  of  wine, 
one  of  which  was  to  be  paid  for  in  money,  and  for 


186         STOPPAGE  IN  TRANSITU. 

the  remainder  Shevill  was  to  take  goods  ;  Shevill 
wrote  to  Farquharson,  his  correspondent  in  Lon- 
don, to  send  the  wines,  who  accordingly  purchased 
them  of  Bamford,  Bruin,  and  Go.  and  shipped,  and 
by  the  bill  of  lading,  consigned  them  to  Wright  by 
a  vessel  employed  in  the  course  of  trade  between 
Yarmouth  and  London.  On  the  arrival  of  the 
187  wine  at  Yarmouth,  an  *agent  for  Wright  received 
it  on  his  account,  and  not  having  room  for  them  in 
his  own  cellars,  deposited  them  in  a  cellar  belong- 
ing to  Lawes,  who  was  to  be  paid  for  the  cellar 
room  by  Wright.  A  few  days  afterwards,  Wright 
arrived  at  Yarmouth,  and  tasted  the  wines  and 
took  samples  of  them,  shortly  after  which  Bam- 
ford and  Co.  discovering  that  Farquharson,  to 
whom  they  had  sold  the  wine,  was  a  man  of  no 
property,  stopped  the  goods  in  Lawes'  possession, 
giving  him  an  indemnity  ;  Wright  having  brought 
an  action  against  Lawes  to  recover  them,  it  was 
contended  on  the  part  of  the  latter,  that  as  Wright 
lived  at  Norwich  the  goods  must  be  deemed  to  be 
in  transitu  until  they  arrived  there,  the  usual  course 
being  to  put  them  into  lighters,  and  forward  them 
to  Norwich.  But  Lord  Kenyon  said,  "  There  is 
no  colour  for  saying  that  these  goods  were  in  tran- 
situ ;  all  that  is  necessary  is,  that  the  consignee 
should  exercise  some  act  of  ownership  on  the  pro- 
prrty  consigned  to  him,  and  he  has  done  so  here  ; 
lie  has  paid  for  the  warehouse  room,  he  has  tasted 
and  taken  samples  of  the  wine.  But  it  is  said, 
they  have  not  reached  the  consignee's  place  of 
abode,  where  they  were  to  be  ultimately  delivered  ; 


STOPPAGE    IN    TRANSITU.  *188 

but,  I  think  there  was  *a  complete  delivery  at  Yar- 
mouth, they  were  then  delivered  to  Wright's  agent 
according  to  the  bill  of  lading,  and  the  responsi- 
bility was  transferred  to  Wright."(w) 

A  delivery  of  goods  on  board  a  chartered  ship, 
hired  for  a  term  of  years,  and  fitted  out,  manned, 
and  victualled  by  the  consignee,  and  over  which  he 
has  the  complete  controul,  to  be  sent  by  him  on  a 
mercantile  adventure  for  which  purpose  he  has  pur- 
chased them,  is  a  sufficient  delivery  to  put  an  end 
to  the  transitus.(o) 

And  where  the  goods  have  so  far  gotten  to  the 
end  of  their  journey,  that  they  wait  for  new  orders 
from  the  purchaser  to  put  them  again  in  motion,  to 
communicate  to  them  another  substantive  destina- 
tion, and  if  without  such  orders  they  would  continue 
stationary,  the  right  of  stopping  in  transitu  no  lon- 
ger remains  in  the  consignor.     This  rule  was  esta- 
blished by  the  case  of  Dixon  and  others,  assignees 
of  Battier,  v.  Baldwin,  5  East,  175.  in  which  it  ap- 
peared that  Messrs.  Battier,  who  were  traders  liv- 
ing in  London,  were  in  the  habit  of  ordering  goods 
of  Baldwin,  who  was  a  cotton  dealer  at  Manches- 
ter, *to  be  sent  to  Metcalf  and  Co.  at  Hull,  for  the    *  189 
purpose  of  being  shipped  to  the  correspondents  of 
the  Battiers  at  Hamburgh,  and  by  those  corres- 
pondents sent  to  the  persons  for  whom  the  goods 
were  intended  ;  and  on  the  31st  of  March  the  Bat- 

(«)  Wright  v.  Lawes,  4  Esp.  R.  82. 

(o)  Fowler  v.Kymer,  M.  T.SSOiw.  3  cited  ST  R  442.  1  East,  522 . 
3  East,  396. 


189  STOPPAGE    IJN    TRANSITU. 

tiers  sent  orders  to  Baldwin  for  certain  goods  to  be 
sent  to  Metcalf  and  Co.  at  Hull,  to  be  shipped  for 
Hamburgh  as  usual,  which  were  accordingly  sent ; 
but  soon  after  Baldwin  hearing  that  the  Battlers 
had  become  insolvent,  stopped  the  goods  in  the 
hands  of  Metcalf  and  Co.  who  had  actually  shipped 
four  bales  of  them  on  board  a  vessel  about  to  pro- 
ceed to  Hamburgh,  but  which  were  returned  with 
the  rest  to  Baldwin  upon  his  giving  the  Metcalfs  an 
indemnity.  One  of  the  Metcalfs  who  was  examin- 
ed as  a  witness,  stating  his  business  to  be  merely 
that  of  an  expeditor  agreeable  to  the  directions  of 
the  Battiers,  whose  orders  he  ivas  waiting  at  the  time 
the  goods  were  stopped  :  that  he  had  no  authority  to 
sell  the  goods,  and  frequently  shipped  them  with- 
out seeing  them.  Under  these  circumstances  it 
was  determined  that  the  goods  having  before  their 
stoppage  reached  their  ultimate  place  of  destina- 
tion, as  between  vendor  and  vendee,  and  being 
190  waiting  to  receive  a  new  direction  *from  the  latterr 
the  former's  right  to  stop  them  was  consequently^ 
divested. 

What  mode  of  delivery  to,  or  assumption  of  pos- 
session by,  the  vendee  or  his  representatives,  is  not 
sufficient  to  determine  the  transitus. 

Though  in  cases  where  a  complete  delivery  to, 
or  assumption  of  possession  by  the  vendee  or  his 
agent,  is  impracticable  :  the  exercise  of  slight  acts 
of  ownership  has  been  held  sufficient  to  determine 
the  transitus  of  the  goods,  the  same  sort  of  delivery 
which  as  between  buyer  and  seller,  where  there  is 
qo  insolvency,  would  be  sufficient  to  deprive  the 


STOPPAGE  IN  TRANSITU.  190 

vendor  of  his  right  to  take  the  goods  back,  would 
not  be  so  in  the  case  of  the  consignee's  insolvency, 
or  bankruptcy  \(p)  and  it  seems  that  a  mere  de- 
mand of  them  in  cases  of  the  latter  description, 
from  the  person  in  whose  hands  they  are  placed  for 
the  purpose  of  conveyance  from  the  vendor  to  the 
purchaser,^)  or  the  payment  of  the  *freight(V)  on  *  191 
the  part  of  the  vendee,  would  not  be  a  sufficient 
assumption  of  possession,  to  devest  the  vendor  of 
his  right  to  stop  them. 

Wherever  the  party  to  whom  the  goods  are  de- 
livered, for  the  vendee  is  merely  a  vehicle  between 
the  vendor  and  vendee,  or  wherever  the  goods  are 
placed  in  a  third  person's  hands  for  the  purpose  of 
being  forwarded  to,  and  a  more  complete  assump- 
tion of  possession  is  in  contemplation  by  the  con- 
signee, the  delivery  will  not  operate  as  a  determi- 
nation of  the  transitus.(s)  Thus,  in  Stokes  v.  La 
Riviere.  London  sittings  after  Mich.  T.  1784,  cited 

(p)  Ellis  v  Hunt,  3  T.  R.  464. 

(9)  Though  a  demand  only  is  sufficient  on  the  part  of  the  vendor  to 
■sffect  a  stoppage  of  the  goods,  it  seems  that  nothing-  short  of  posses- 
sion on  the  part  of  the  vendee  will  be  sufficient  to  divest  the  vendor's 
right ;  ante  chap.  II.  note  (b)  But  a  symbolical  delivery  will  in  some 
cases  be  sufficient  to  produce  that  effect,  ante,  notes  (c)  (d  (f). 

(r)  In  Kinlock  v.  Craig-,  3  T.  It.  119.  The  court  seemed  to  think  that 
the  payment  of  part  of  the  freight,  if  it  had  not  been  paid  in  the  qua- 
lity of  factor  or  with  a  fraudulent  view  would  have  been  a  sufficient 
possession.  But  in  Mills  v.  Ball,  2  Pos.  &  Ful.  457.  where  the  whole 
freight  was  paid  by  the  wharfinger  on  behalf  of  the  vendee;  it  was  de- 
cided that  the  vendor  was  not  devested  of  It  is  right  of  stoppage. 

(s)  Stokes  v.  La  Riviere,  3  T.  R.  466.  3  East,  397.  Hunter  v.  Beal, 
cited  3  T.  R.  466.  Hodgson  v.  Loy,  7  T.  R.  440.  Per  Ld.  Alvanley, 
Mills  v.  Ball,  2  Bos.  and  Pul.  457.     Smith  v.  Goss,  1  Campb.  R.  240, 

21 


191  STOPPAGE  IN  TRANSITU. 

3  T.  R.  466.  and  more  correctly  by  Lawrence,  J. 
in  Bohtlingk  v.  Inglis,  3  East,  397.  the  facts  of 
which  were  as  follow :  Messrs.  Duhem  of  Lisle, 

*  192  who  *had  just  arrived  in  London,  applied  to  Stokes 
who  was  a  riband  weaver,  for  a  quantity  of  ribands, 
and  who  having  received  a  favourable  account 
from  La  Riviere  of  Duhem's  circumstances, 
packed  up  goods  to  a  large  amount,  and  delivered 
them  to  La  Riviere,  to  be  forwarded  to  Lisle. 
These  goods,  with  others,  purchased  in  like  man- 
ner of  Twigge,  a  gauze  weaver,  were  forwarded, 
on  or  about  the  12th  of  May,  to  La  Riviere's  cor- 
respondent at  Ostend,  with  directions  to  send  them 
to  the  order  of  Messrs  Duhem.  On  the  receipt  of 
the  goods,  viz.  on  the  29th  of  May,  La  Riviere's 
correspondent  at  Ostend,  wrote  to  Duhem  an  ac- 
knowledgment and  that  they  waited  their  direc- 
tions. On  the  12th  of  June  the  Duhems  stopt 
payment ;  and  by  an  instrument  signed  the  13th 
of  August,  consented  to  Twigge's  taking  back  his 
goods.  But  Messrs.  Duhem  not  having  fulfilled 
some  engagements  with  La  Riviere,  and  being 
considerably  indebted  to  him,  La  Riviere  counter- 
manded the  orders  he  had  given  to  his  correspon- 
dents at  Ostend,  as  to  the  delivery  of  the  goods  by 
letter  of  the  31st  of  May,  and  directed  them  to 
alter  the  marks  and  to  deliver  them  to  his  order, 
which   \\;i^  accordingly  done  ;  and  they  were  af- 

1  193  terwards  disponed  of  in  satisfaction  *of  La  Ri- 
viere's demand,  he  contending  that  immediately 
upon  the  delivery  of  the  goods  by  Stokes  to  him, 


STOPPAGE  IN  TRANSITU.  193 

the  property  vested  in  Messrs.  Duhem,   and  that 
he  (La  Riviere)  had  a  right  to  retain  them.     But 
Lord  Mansfield  said, "  No  point  is  more  clear  than 
that  if  goods  are  sold,  and  the  price  not  paid,  the 
seller  may  stop  them  in  transitu:  I  mean  in  every 
sort  of  passage  to  the  hands  of  the  buyers.     There 
have  been  an  hundred  cases  of  this  sort ;  ships  in 
harbour,  carriers,  bills  have  been  stopped  ;  in  short, 
where  the  goods  are  in  transitu,  the  seller  has  that 
proprietory  lien.     The  goods  are  in  the  hands  of  La 
Riviere  to  be  conveyed;  the  owner  may  get  them 
back  again."     This  decision,  it  is  to  be  observed, 
only  determines  that  the  transitus  is  not  at  an  end, 
while  the  goods  remain  in  the  hands  of  an  agent 
for  the  purpose  of  being  forwarded  to  the  consignee. 
But  that  of  Hunter  v.   Beal,  sittings  after  Trin. 
1785,  cited  3  T.  R.  466.  goes  a  much  greater 
length ;  in  that  case  the  goods  had  been  sent  di- 
rected for  the  consignee,  to  an   innkeeper,  who 
gave  notice  to  him  of  their  arrival,  the  consignor 
at  the  same  time  sending  him  a  bill  of  parcels,  the 
receipt  of  which  the  consignee  acknowledged,  in- 
forming the  consignor  that  the  amount  was  *placed    *  194 
to  his  credit,  and  afterwards  ordered  the  innkeeper 
to  send  the  goods  down  to  a  particular  quay,  to  be 
shipped  on  board  a  particular  ship  to  be  carried 
abroad ;  and  the  goods  were  accordingly  carried 
to  the  quay,  but  being  too  late,  returned  to  the 
innkeeper,  who  after  some  days  had  elapsed  asked 
the  consignee  what  was  to  be  done  with  the  goods 
and  was  ordered  by  him  to  keep  them  until  another 


194  STOPPAGE  IN  TRANSITU. 

ship  sailed.  Under  these  circumstances  it  was  de- 
termined, by  the  same  learned  chief  justice  who 
determined  the  preceding  case,  that  the  goods 
were  still  in  transitu,  in  the  hands  of  the  innkeeper, 
and  that  they  must  come  to  the  corporal  touch  of  the 
vendee,  in  order  to  devest  the  vendor  of  his  right 
to  stop  them.  This  decision,  however,  is  so  di- 
rectly contrary  to  the  principles  of  the  other  deci- 
sions upon  the  same  point,  and  so  much  shaken, 
(if  not  overturned)  by  the  cases  of  Richardson  v. 
Goss,  3  Bos.  &  Pul.  119.  and  of  Dixon  v.  Baldwin, 
*"°  5  East,  \lb.{t)  That  though  *it  is  not  expressly 
overturned,  no  reliance  can  be  placed  upon  it,  as 
an  authority. 

In  conformity  to  the  principle  laid  down  in  the 
case  of  Stokes  v.  La  Riviere,  it  has  been  decided, 
that  a  delivery  of  goods  from  a  ship  to  a  wharfin- 
ger, to  be  by  him  forwarded  to  the  vendee,  will 
not  determine  their  transit,  though  the  wharfinger 

(t)  In  Dixon  v.  Baldwin,  5  East,  184.  Lord  Ellenborough,  Ch,  J.  says, 
%' in  Hunter  v.  Deal,  I  cannot  but  consider  the  transit  as  having  been 
once  completely  at  an  end,  in  the  direct  course  of  the  goods  to  the 
vendee,  that  is,  when  they  had  arrived  at  the  innkeeper's,  and  were  af- 
terwards under  the  immediate  orders  of  the  vendee,  thence  actually 
launched  again  in  a  course  of  conveyance  from  him  in  their  way  to 
Boston,  being  in  a  new  direction  prescribed  and  communicated  by  him- 
self; and  if  the  transit  be  once  at  an  end,  the  delivery  is  complete,  and 
the  transitu*  fur  this  purpose  cannot  commence  de  novo,  merely  be- 
cause the  goods  are  again  sent  upon  their  travels,  towards  a  new  and 
ulterior  deslinition"  And  Le  Blanc,  J  observed,  with  respect  to  the 
same  c:«sc,  thai  the  vendee's  having  given  the  goods  a  different  direc- 
lion  after  they  had  gol  to  the  inn,  and  before  the]  were  stopped,  he 
i!d  have  thought  that  the  transit  was  a1  an  end. 


STOPPAGE    IN    TRANSITU.  195 

is  appointed  by  the  vendee  to  receive  them  (u) 
And  where  goods  are  sent  to  *a  packer,  for,  and  by  "  196 
orders  of  the  vendee,  the  packer  will  only  be  con- 
sidered as  a  middle-man,  and  the  goods  in  his 
hands  as  being  still  in  their  transit,(i;J  provided 
that  in  these  cases,  the  vendee  do  not  use  the 
wharfinger's(w)-  or  the  packer's(.rj  warehouse  as' 
his  own,  and  have  an  ulterior  place  of  delivery  in 
view. 

Upon  the  same  principle,  it  has  been  determined, 
that  a  delivery  of  plate  to  an  engraver,  to  engrave 
the  arms  of  the  purchaser,  at  the  expense  of  the 
vendor,  will  not  defeat  the  latter's  right  to  stop  it 

(m)  Hodgson  v.  Loy,  7  T.  R.  440.  Mills  v.  Ball,  2  Bos.  &  Pul.  457. 
Smith  v.  Goss,  1  Campb.  282.  In  Hodgson  v.  Loy  the  circumstance  of 
the  wharfinger's  being  appointed  by  the  vendee,  was  considered  as  being 
of  no  importance.  But  in  Mills  v.  Ball,  Lord  Alvanley  seems  to  think, 
that  such  appointment  might  make  a  difference,  for  he  says,  "  I  am  of 
opinion  that  the  wharfinger  in  this  case,  not  having  been  particularly  em- 
ployed by  the  vendee  is  to  be  considered  a  middle-man.  The  same  cir- 
cumstance was  not  considered  as  making  a  delivery  to  the  wharfinger, 
a  determination  of  the  transitus  in  Smith  v.  Goss.  And  from  the  cases 
of  Snee  v.  Prescott,  1  Atk.  245.  Bowering  v.  Verullez,  cited  by  lid. 
Loughborough  in  Lickbarrow  v.  Mason,  1  H.  Bla.  364.  Hunt  v.  Ward, 
cited  3  T.  R.  467.  Feize  v.  AVray,  3  East,  93.  and  Oppenheim  v.  Russel, 
3  Bos.  &  Pul.  42.  and  the  judgment  of  Buller,  J.  Ellis  v.  Hunt,  3 
T.  R.  464.  it  appears  that  the  appointment  of  the  carrier,  or  middle- 
man, by  the  vendee,  or  the  goods  being  conveyed  at  the  risk,  and  on 
the  account  of  the  vendee,  will  not  render  the  delivery  of  them  to  the 
carrier  or  middle-man,  a  conclusion  of  the  transitus. 

(v)  Hunt  v.  Ward,  cited,  3  T.  R.  467- 

(w)  D.  Chambre,  J.  Richardson  v.  Goss,  3  Bos.  and  Pul.  127.  Wrigftl 
y.  Lawes,  4  Esp.  R.  82. 

(x)  Scott  v.  Pettit,  3  Bos.  and  Pul.  469. 


19(3  STOPPAGE  IN  TR4ESITU. 

in  transitu,  upon  the  purchaser's  becoming  insol- 
vent, or  bankrupt.(j/) 

197  So,  too,  the  delivery  of  goods  to  a  common  *car- 
rier,(^)  or  on  board  a  general  ship,(a)  for  the  pur- 
pose of  being  conveyed  to  the  vendee,  though  at 
the  risk  and  expense,  and  in  the  name,  and  by  the 
appointment  of  the  vendee,(6J  is  not  such  a  deli- 
very as  to  put  an  end  to  the  transit l  5. 

The  laws  of  Russia,  as  well  as  the  civil  law,  are 
more  favourable  than  the  laws  of  England,  to  the 
vendor  of  goods,  in  enabling  him  to  reclaim  them, 
in  case  of  the  purchaser's  want  of  ability,  or  will 
to  pay  for  them.  By  one  of  the  mercantile  navi- 
gation laws  of  Russia,  published  the  25th  of  June, 
sect.  138.  "  it  is  ordered,  that  if  in  case  of  unpaid 
debts  or  bankruptcies  any  body  has  reason  to  sus- 
pect that  the  debtor  or  bankrupt  has  any  thoughts 
of  making  the  creditor  lose,  and  therefore  loadeth 
on  board  of  ship,  or  vessel,  goods  or  cargo  ;  in 
-uch  case  the  creditor  is  to  give  notice  in  town,  to 
the  head  judge  of  the  court,  (in  districts  to  the 
chief,)  that  the  ship  or  vessel,  or  goods,  or  the  whole 

•  198  cargo  should  be  retained  time  ^enough  until  the 
full  payment  is  made  to  whom  due."  "  In  conse- 
quence whereof,  and  by  virtue  of  this  law,  if  the 
seller  or  shipper,  in  case  of  bankruptcies  can  iden- 
tify that  the  merchandize  belonging  to  him  is  in 

(;/)  Owenson  v.  Morse,  7  T.  H.  64. 

(z)  stokes  v.  La  Riviere,  cited  3  T.  R.  466.     Hunter  v.  Heal,  ibid 
and  see  cases,  ante  note(s.) 

(,i)  Cases  cited  ante  note  («)  and  Bohtlingk  v.  Ing-Us,  3  East,  397. 
te  (a) 


STOPPAGE  IN  TRANSITU.  198 

Russia,  in  ships,  warehouses,  or  wherever  they  may 
be,  in  such  case  the  goods  must  be  given  back  to 
the  sellers,  or  shippers,  being  their  property,  and 
cannot  be  brought  in  concurs,"  viz.  (into  the  ge- 
neral mass  of  the  bankrupt's  effects,  to  be  distri- 
buted among  his  creditors.)  The  law  of  England, 
however,  will  assist  such  equitable  laws  of  other 
countries  in  their  operation  upon  transactions  taking 
place  there,  and  will  allow  them  to  be  carried  into 
effect  here.  Accordingly,  where  Messrs.  Bohtlingk 
and  Co.  of  St.  Petersburgh,  in  pursuance  of  di- 
rections from  one  Crane,  of  London,  and  as  fac- 
tors for  him,  shipped  goods  on  board  a  ship  char- 
tered  by  Crane,  and  sent  invoices  thereof,  and  a  bill 
of  lading  of  part  to  him,  but  learning  before  the 
ship's  departure,  that  some  bills  drawn  by  them  on 
him,  in  consequence  of  a  previous  transaction, 
were  unpaid,  they  procured  from  the  master  of  the 
vessel  bills  of  lading  to  their  own  order,  and  sent 
them  to  a  friend  in  London,  and  informed  Crane 
that  he  might  *have  the  bills  of  lading  upon  giving  *  199 
security  to  their  friend  for  payment  of  the  bills  of 
exchange  to  be  drawn  for  the  amount  of  the  goods, 
otherwise,  their  friend  would  sell  the  goods  on 
Crane's  account,  and  apply  the  proceeds  in  dis- 
charge of  the  bills  of  exchange.  Crane,  in  fact, 
had  committed  an  act  of  bankruptcy,  before  any 
of  the  goods  were  shipped.  On  the  arrival  of  the 
ship  in  London,  his  assignees  demanded  the  goods 
of  the  master,  and  offered  to  pay  the  freight,  &c. 
but  the  master  delivered  them  to  the   friend  of 


199  STOPPAGE  IN  TRANSITU. 

Bohtlingk  and  Co.  on  their  account,  in  conformity 
to  their  indorsement  of  the  bills  of  lading.  Where- 
upon the  assignees  of  Crane  brought  an  action 
against  the  master,  and  the  court  held  that  the  law 
of  Russia  in  this  case  ought  to  prevail,  though 
Bohtlingk  and  Co.  had  not  actually  taken  the 
goods  out  of  the  ship,  or  instituted  legal  process 
for  the  recovery  of  them  ;  the  master's  signature  of 
the  bill  of  lading  to  their  order  being  equivalent  to 
a  stopping  in  transitu,  or  re-delivery  to  them.(c) 
This  decision,  however,  was  made  merely  upon 
the  authority  of  the  Russian  law,  it  having  been 
*200  previously  decided  by  Lord  *Kenyon  at  Nisi 
Prius,(*J  and  the  same  notion  being  in  this  case 
entertained  by  the  court,  that  the  right  of  stopping 
in  transitu  could  not  be  exercised  under  the  law  of 
England,  in  any  case  after  an  unconditional  deli- 
very of  the  goods  on  board  a  ship  chartered  by  the 
consignee.  But  this  notion  has  been  since  explo- 
ded in  the  case  of  Bohtlingk  v.  Inglis,  3  East,  381. 
arising  out  of  the  same  transaction,  in  which  it 
was  decided,  that  a  delivery  of  the  goods,  even  on 
board  a  ship  chartered  by  the  consignee,  does  not 
devest  the  consignor  of  his  right  of  stopping  them 
in  transitu,  if  the  ship  is  chartered  only  for  the  pur- 
pose of  fetching  the  goods  from  the  consignor  to 
the  consignee,  and  the  consignee  has  no  further 
control  over  it.  The  facts  of  the  case  as  appli- 
cable  to  this  point  were  as  follow  :    Crane,  the 

u  |  [nglis  v.  Usherwood,  l  East,  515 
'  Bohtlingk  v  Schneider,  5  F.sp  58 


STOPPAGE  IN  TRANSITU.  200 

bankrupt,  a  merchant  in  London,  entered  into  an 
agreement  with  Usherwood,  the  master  of  a  ship, 
for  that  ship  to  go  to  Petersburgh,  and  there  re- 
ceive from  the  factors  of  the  bankrupt  a  quantity 
of  merchandize  of  various  descriptions,  and  to 
proceed  from  thence  to  London,  in  consideration 
of  certain  freight  to  be  paid  per  *ton,  half  on  the  *  20] 
unloading,  and  the  remainder  in  three  months ; 
for  which  goods  the  master  was  to  sign  the 
usual  bills  of  lading,  and  Crane  was  fully  to  load 
the  ship.  In  consequence  of  this  agreement  the 
ship  sailed  to  Petersburgh,  and  was  loaded  by 
Bohtlink  and  Co.  on  the  account  and  risk  of  Crane ; 
and  one  part  of  the  bill  of  lading,  directing  the 
goods  to  be  delivered  to  Crane,  or  his  assigns,  was 
sent  to  him ;  the  other  part,  in  consequence  of 
Bohtlink  and  Co.  having  information  of  Crane's  in- 
solvency, was  afterwards  sent  to  Mr.  Schneider 
their  agent,  with  directions  not  to  deliver  that  part 
to  Crane,  unless  he  gave  sufficient  security  for  the 
amount  of  the  goods.  And  Bohtlink  and  Co.  at 
the  same  time  that  they  sent  this  part  of  the  bill  of 
lading  to  Schneider,  informed  Crane  of  their  hav- 
ing so  done,  and  required  him,  in  case  he  did  not 
give  the  security,  to  deliver  to  Schneider  the  bill  of 
lading  that  had  been  sent  to  him  (Crane).  In  fact, 
Crane  had  become  a  bankrupt  before  the  goods 
were  delivered  on  board  the  ship  in  Russia,  but 
after  their  purchase  ;  and  on  the  arrival  of  the  ship 
in  the  Thames,  Schneider  demanded  the  goods  of 
the  master,  who  refused  to  deliver  them  to  him,  but. 

<22 


*202  STOPPAGE    IN    TRANSITU. 

delivered  them  to  the  assignees  *of  Crane.  Law- 
rence, J.  after  thus  stating  the  facts  of  the  case,  in 
delivering  the  opinion  of  the  court,  said  :  "  for  the 
benefit  of  trade  a  rule  has  been  introduced  into  the 
common  law,  enabling  the  consignor  in  case  of  the 
insolvency  of  the  consignee,  to  stop  the  goods  con- 
signed before  they  come  into  the  possession  of  the 
consignee,  which  possession  Mr.  J.  Buller,  in  Ellis 
Vc  Hunt,  says,  means  actual  possession.  That  the 
possession  of  a  carrier  is  not  such  possession  hasr 
been  repeatedly  determined,  and  the  question  now 
is,  whether  the  possession  of  the  master  be  any 
thing  more  than  the  possession  of  a  carrier,  and  not 
the  actual  possession  of  the  bankrupt  ?  And  to  this 
it  appears  that  Usherwood  the  master  contracted 
with  the  bankrupt  to  proceed  from  hence  to  Peters- 
burgh,  and  to  bring  in  his  ship  a  cargo  of  goods 
which  Crane  encased  should  amount  to  the  ton- 
nage  of  the  ship  ;  which  does  not  differ  from  a  si- 
milar contract  entered  into  by  the  consignor  by 
the  directions  of  the  consignee  at  the  loading  port, 
for  the  conveyance  of  the  goods  from  him  to  the 
vendee :  in  which  case  it  would  hardly  be  con- 
tended that  a  delivery  by  the  consignor  to  the  mas- 
ter of  the  ship,  for  the  purpose  of  carriage  would 
203  be  such  a  delivery  to  the  vendee  *as  to  prevent  the 
right  of  stoppage  in  transitu.  In  each  case  the 
freight  would  be  to  be  paid  by  the  consignee ;  in 
each  case  the  ship  would  be  hired  by  him,  and 
there  would  be  no  dilference,  except  that  in  this 
case  the  ship  in  consequence  of  the  agreement 
goeK  from  England  to  fetch  the  cargo  ;  in  the  other 


STOPPAGE    IN    TRANSITU.  203 

case  the  vessel  would  bring  it  immediately  from 
the  loading  port :  both  in  the  one  case  and  in  the 
other,  the  contract  is  with  the  master  for  the  car- 
riage of  the  goods  from  one  place  to  another,  and 
until  the  arrival  of  the  goods  at  their  port  of  desti- 
nation and  delivery  to  the  consignee,  they  are  in 
their  passage  or  transit  from  the  consignor  to  the  con- 
signee.    If  a  man  contract  with  the  owner  of  a 
general  ship  to  take  goods,  which  are  equal  to  half 
the  tonnage  of  the  ship,  and  the  master  complete 
the  loading  of  his  ship  with  the  goods  of  otheis, 
there  would  be  no  question  but  there  might  be 
such  stoppage :  and  surely  it  would  not  be  said 
that  the  right  of  stoppage  depends  upon  the  quan- 
tity of  the  goods  consigned."     The  learned  judge 
then  observed  that  the  case  of  Fowler  v.  Kymer 
had  been  relied  on  in  support   of  the  claim  of 
Crane's  assignees ;   and  after  stating  the  facts  of 
that  case,  added,   that  they  differed  widely  from 
this,  in  *which   Crane  had  no  controul  over  the    *204 
ship,  and  had  merely  contracted  with  the  master 
to  employ  his  ship  in  fetching  goods  for  him  ;  and 
that  the  case  of  Inglis  v.  Usher  wood  was  perfectly 
consistent  with  the  decision  here  given,  that  case 
being  determined  on  the  ground  that  the  Russian 
laws  authorised  the  taking  of  the  goods,  even  if  the 
delivery  had  been  complete. 

At  what  time  possession  may,  or  may  not  be  taken 
by  the  vendee  or  his  representative. 

The  vendee  may  take  possession  of  the  goods  at 
any  time  after  they  have  arrived  at  the  place  to 
which  they  were  consigned  by  the  vender,  though 


204         STOPPAGE  IN  TRANSITU. 

an  act  of  bankruptcy  should  have  been  previously 
committed  by  the  vendee  \(c)  but  the  vendee  can- 
not deprive  the  vendor  of  his  right  to  stop  the  goods 
during  their  transit,  by  meeting  and  taking  posses- 
sion of  them  before  they  have  reached  the  end  of 
their  destined  journey.  ,  This  was  decided  in  the 
case  of  Hoist  v.  Pownal,  1  Esp.  R.  240.(d)  in  which 

(c)  Ellis  v.  Hunt,  3  T.  R.  464. 

(d)  The  decision  of  Wright  v.  Lawes,  4  Esp.  R.  82.  is  certainly  not 
favourable  to,  though  it  does  not  appear  to  be  entirely  irreconcileable 
with  the  doctrine  laid  down  in  Hoist  v.  Pownal.  However,  in  Mills  v. 
Ball,  2  Bos.  &  Pul.  461.  Lord  Alvanley  says,  in  direct  opposition  to 
that  doctrine,  "  If  in  the  course  of  the  conveyance  of  the  goods  from 
the  vendor  to  the  vendee,  the  latter  be  allowed  to  exercise  any  act  of 
ownership  over  them,  he  thereby  reduces  the  goods  into  possession, 
and  puts  an  end  to  the  vendor's  right  to  stop  them.  So  though  it  has 
been  said,  that  the  right  of  stoppage  continues  until  the  goods  have 
arrived  at  tlieir  journey's  end,  yet  if  the  vendee  meet  them  upon  the  road 
and  take  them  into  his  own  possession,  the  goods  -Mil  then  have  arrived  at 
their  journey's  end  with  reference  to  the  right  of  stoppage."  The  reporter 
of  this  case  seems  to  think  that  a  distinction  might  be  made  between 
goods  sent  by  sea  and  goods  sent  by  land,  as  the  captain  undertakes 
by  the  bill  of  lading  to  deliver  the  goods  at  a  particular  place.  But 
there  does  not  appear  to  be  any  sufficient  ground  for  such  a  distinc- 
tion ;  for  the  carrier  by  land  seems  to  be  equally  bound  to  deliver  the 
goods  at  the  place  to  which  they  are  directed,  and  an  action  would  lie 
as  well  against  him  for  a  misdelivery  as  against  the  captain  of  a  ves- 
sel ;  and  the  reason  assigned  by  Lord  Kenyon  in  Hoist  v.  Pownal,  (that 
if  the  vendee  were  allowed  to  take  possession  of  the  goods  at  any  time 
during  the  journey,  he  might  entirely  defeat  the  right  of  stoppage,)  ap- 
plies with  the  same  force  to  cases  of  carriage  by  land,  as  to  those  of 
carriage  by  water.  And  in  conformity  with  this  opinion  of  Lord  Alvan- 
ley, Chambre,J.  in  liis  judgment  in  the  case  of  Oppenheim  v.  Russell, 
3  Bos.  &.  Pul.  42.  says  "  perhaps  the  consignee  himself  may  intercept 
the  goods  in  their  passage;  and  indeed  I  have  little  doubt  but  that  if 
he  do  intercept  them  in  their  passage  before  the  consignor  has  exer- 
cised his  right  of  Stopping  in  transitu,  and  do  take  an  actual  delivery 
from  the  carrier  before  the  foods  get  to  the  endof  their  journey,  that  such 
a  ddivery  to  him  will  be  complete."    But  the  doctrine  laid  down  by 


STOPPAGE  IN  TRANSITU.  *20£> 

it  appeared  that  Hoist  *who  was  a  merchant  liv- 
ing at  Leghorn,  consigned  a  cargo  of  fruit  to  Dut- 
ton  and  *Co.  at  Liverpool,  by  a  ship  chartered  on    *206 
their  account.     The  captain  signed  three  bills  of 
lading  as  usual,  one  of  which  was  sent  to  Dutton 
and  Co.     Before  the    ship  arrived   at  Liverpool 
Dutton  and  Co.  became  bankrupts.     On  the  ship's 
arrival  at  Liverpool,  she  was  ordered  to  perform 
quarantine  ;  and  during  the  quarantine,  one  of  the 
assignees  of  Dutton  and  Co.  went  on  board  the  ves- 
sel, claimed  the  cargo  as  belonging  to  Dutton  and 
Co.'s  estate,  opened  some  of  the  chests  of  oranges, 
and  put  two  persons  on  board,  who  continued  there 
till  the  quarantine  was  ended,  with  a  view  of  keep- 
ing possession  of  the  cargo.     A  few  days  after- 
wards, but  before  the  expiration  of  the  quarantine, 
Holt's  agent  served  a  notice  of  Dutton  and  Co.'s 
bankruptcy  on   the    captain    of  the   vessel,  and 
claimed  the  goods  on  behalf  of  Hoist.     A  similar 
notice  was  served  on  the  assignees,  and  when  the 
vessel  came  into  the  harbour  a  claim  was  again 
made  to  the  captain,  and  an  indemnity  offered  to 
him,  by  Hoist's  *agent ;  but  he  delivered  the  goods     *20T 
to  Dutton  and  Co.'s  assignees,  against  whom  Hoist 
having  consequently  brought  an  action  of  trover  to 
recover  the    goods.     They  contended,   that   the 
principal's  right  to  stop  in  transitu  was  completely 
at  an  end  when  the  consignee  had  got  possession, 

Lord  Kenyon  in  Hoist  v.  Pownal,  and  which  is  thus  controverted  by 
Lord  Alvanley,  Cb.  J.  and  Chambre,  J.  appears  to  be  supported  by 
Ashurst,  J.  in  Linkbarrow  v.  Mason,  2  T.  R.  63.  and  by  Lawrence,  J.  in 
Bohtlingk  v.  Inglis.  3  East,  398. 


207  STOPP\GE    IN    TRAINSITL. 

by  any  means  of  the  goods  consigned  :  that  the 
consignee  might  have  met  the  vessel  at  sea  on  her 
voyage,  and  have  taken  possession  by  virtue  of  the 
first  bill  of  lading,  which  possession,  they  contend- 
ed, would  be  complete  to  divest  any  right  the  con- 
signor might  have  to  stop  the  goods  in  transitu. 
But  Lord  Kenyon  was  of  opinion,  that  this  was  a 
stopping  in  transitu  sufficient  to  maintain  the  ac- 
tion ;  his  lordship  said,  that  in  order  to  give  the 
consignee  a  right  to  claim  by  virtue  of  possession, 
it  should  be  a  possession  obtained  by  the  con- 
signees, on  the  completion  of  the  voyage ;  that  the 
case  put,  that  the  consignee  had  a  right  to  go  out 
to  sea  to  meet  the  ship,  could  not  be  supported,  as 
it  might  go  the  length  of  saying,  that  the  consignee 
might  meet  the  vessel  coming  out  of  the  port,  from 
whence  she  had  been  consigned,  and  that  that 
would  divest  the  property  out  of  the  consignor  and 
208  vest  it  in  himself ;  which  was  *a  proposition  not  to 
be  supported,  as  there  would  be  then  no  possibility 
of  any  stoppage  in  transitu  at  all.  That  in  the  pre- 
sent case  the  voyage  was  not  completed,  till  she 
had  performed  quarantine,  till  which  time  she  was 
in  transitu  ;  and  as  Hoist's  agent  had  given  notice, 
and  claimed  the  cargo  before  the  completion  of  the 
voyage,  he  was  of  opinion,  that  Hoist  had  stopped 
the  goods  time  enough  to  prevent  the  property 
from  vesting  in  the  assignees. 


STOPPAGE    IN    TRANSITU.  *209 


*CHAP.  IV. 


Wlien  the  consignor's  right  to  stop  the  goods  in  tran- 
situ is  divested  by  the  consignee's  having  aliened 
them  to  a  third  person  * 


WHERE  goods  have  been  consigned  under  a 
contract  for  sale,  or  what  is  equivalent  to  a  sale, 
and  the  consignor  has  transmitted  to  the  consignee 
documents  which  are  sufficient  in  law  to  transfer 
the  property,  and  the  consignee  has  made  use  of 
them,  to  transfer  it  to  a  third  person,  who  pur- 
chases it  bona  fide,  for  a  valuable  consideration, 
and  without  notice  of  any  circumstances  which 
render  the  property  *not  fairly  assignable,  the  con-  *216 
signor  is  divested  of  his  right  to  stop  the  goods  in 
transitu,  though  they  were  consigned  wholly  on 
credit,  and  the  consignee  has  become  insolvent, 
without  paying  for  them.(a) 

*  The  consignor's  right  to  stop  goods  in  their  transit,  to  the  con- 
signee, cannot  be  defeated  by  a  third  person  in  whose  hands  they  are 
placed,  claiming  to  retain  them  on  the  ground  of  a  lien  for  a  general 
balance  due  to  him  from  the  consignee  in  the  course  of  trade  :  accord- 
ingly in  the  case  of  Oppenheim  v.  Russel,  3  Bos.  and  Pul.  42.  it  was 
determined,  that  an  usage  for  a  carrier  to  retain  goods  for  the  general 
balance  of  account  due  to  him  from  the  consignee,  could  not  prevent 
the  consignor  from  stopping  them,  and  taking  them  out  of  the  car- 
rier's hands,  upon  paying  the  price  of  the  carriage  of  those  particular 
goods  only. 

(c~)  Wright  v.  Campbell,    4  Burr.  2046.    Ljckbarrow  v.  Mason.  2T 


210 


STOPPAGE    IN    TRAIN  SITU. 


The  only  kind  of  document  which  has  been  de- 
termined to  have  the  effect  of  enabling  the  con- 
signee to  transfer  the  property  in  the  goods  con- 
signed to  a  third  person,  free  from  any  right  of 
stoppage  by  the  consignor,  is  that  which  is  termed 
a  bill  of  lading  :(/>)  and  different  opinions  have 
been  held,  not  only  as  to  the  form  in  which  this 
instrument  should  be  drawn,  to  constitute  a  trans- 
fer of  the  property  to  the  consignee  ;  but  as  to  its 
having  in  any  form,  the  effect  of  enabling  the  con- 
signee to  transfer  the  property  to  a  third  person, 
free  from  the  equitable  claims  of  the  consignor. 
1st.  With  respect  to  the  form  of  the  instrument '; 
it  was  formerly  held  that  the  legal  property  did  not 
pass  at  all  to  the  consignee  by  a  blank  endorse- 
21 1  ment  of  the  bill  of  lading  ;(c)  but  this  doctrine  *has 
long  been  exploded,  and  it  is  now  clearly  settled, 
that  an  endorsement  in  blank  has  the  same  effect 
as  an  endorsement  to  deliver  to  the  consignee's  or- 
der, and  a  bill  of  lading,  endorsed,  either  in  blank, 
or  to  the  consignee,  or  order  is  sufficient  to  vest  the 
property  in  him,  so  far  as  to  enable  him  to  divest 
the  consignor  of  his  right  of  stoppage  in  transitu 
by  transferring  the  properly  to  a  third  person  \(d) 
and  if  tin;  bill  of  lading  has  by  its  form  required 

R,  63.  Salomon  v.  Nissens,  2  T.  R.  6^4.  Cuming  v.  Brown,  9 
F/  si,  506; 

Hi)  An  in\  nee  seems  nol  to  be  a  sufficient  instrument  for  this  pur- 
pose, Snee  \   Pre  cot,  1  Mk  245. 

(c)  Snee  v.  P  esc  »t,  I  Mk   245. 

(/]  !  rekbaiTOW  v  Mumjii,  2  T  K  68.  judgment  of  Duller,  J.  6  East, 
25.  in  QOtis 


STOPPAGE  IN  TRANSITU.  211 

and  received  the  endorsement  of  the  consignor,  a 
second  endorsement  by  the  consignee  is  not  neces- 
sary to  complete  the  transfer  of  the  property  from 
him  to  a  third  person. (e)     Nor  is  it  in  every  case 
indispensably  necessary  in  order  to  give  the  bill  of 
lading  this  effect,  that  there  should  be  an  endorse- 
ment of  it  all  by  the  consignor  ;  for  circumstances 
may  exist  which  are  equivalent  in  law  to  such  an 
endorsement,  and  therefore  render  it  unnecessary. 
Accordingly  where  a    merchant  in   Ireland   sent 
goods  to  his  factor  in  London,  and  wrote  to  him  to 
insure  the  goods,  and  sent  him  a  bill  of  *lading  not    *  212 
endorsed,  but  having  the  name  of  the  factor  on  the 
back  ;  and  upon  being  applied  to  by  the  latter  for 
an  endorsement,  answered  by  letter  that  if  the  bill 
of  lading  was  not  endorsed,  it  was  merely  a  mis- 
take, and  he   would  send  an  endorsement,  upon 
which  the  factor  sold  the  goods  ;  and  it  afterwards 
happening  that  he    was  unable  to   pay  the  bill 
drawn  upon  him  by  the  merchant  on  the  general 
account,  a  third  person  paid  the  bill  for  the  honour 
of  the  drawer,   and  being   acquainted  with  the 
whole  transaction  applied  to  the  merchant  for  an 
endorsement  of  the  bill  of  lading,  which  the  latter 
sent  him,  and  he  (having  upon  the  receipt  of  it  de- 
manded the  goods  of  the   master,  who  refused  to 
deliver  them  to  him,  but  delivered  them  to  the 
vendee  of  the  factor,)  brought  an  action  against 
the  master,  which  was  tried  before  Lord  Kenyon, 
and  his  lordship  ruled  that  the  plaintiff  had,  under 

(e)  Lickbarrow  v.  Mason,  2  T.  R.  63.    Abbot  on  Ship.  374. 

23 


212  STOPPAGE  IN  TRANSITU. 

those  circumstances,  no  right  to  take  the  goods  out. 
of  the  possession  of  the  vendee  of  the  factor  ;  the 
latter  being  sufficiently  empowered  to  transfer  the 
property,  and  having  actually  done  it(f) 

*213  The  consignor  may  however  restrain  *the  nego- 
tiability of  the  bill  of  lading,  by  leaving  it  unin- 
dorsed,^) or  by  confining  it  by  the  endorsement  to 
the  consignee  ;(7i)  for  if  there  are  no  circumstances 
in  the  case,  which  can  be  considered  as  equivalent 
to  an  endorsement,  and  the  bill  be  for  delivery  to 
order,  or  assigns,  and  transmitted  unendorsed,  the 
holder  of  it  cannot  divest  the  consignor's  right  to 
stop  the  goods  in  transitu  by  aliening  them  to  a 
third  person.  Accordingly  where  one  Fox,  a  wine 
merchant  in  London,  ordered  five  pipes  of  wine  of 
Messrs.  Abbot  and  Co.  of  Oporto,  which  they  load- 
ed on  board  a  vessel  bound  to  London,  and  took 
from  the  master  bills  of  lading  to  order,  or  assigns, 
one  of  which  they  transmitted  to  Fox  in  a  letter, 
wherein  they  said  they  had  shipped  the  wine  on 
his  account,  had  sent  him  a  bill  of  lading,  and 
drawn  upon  him  for  the  price  :  and  Fox  accepted 
the  bill  of  exchange  thus  drawn  upon  him  ;  but  be- 
fore it  became  due  the  wine  arrived  ;  and  Fox  not 
being  able  to  pay  the  duties,  it  was  sent  to  the 
king's  warehouse  under  the  statute  of  26  Geo.  3.  c. 

*  214  &$•  while  it  *reinained  there,  Fox  being  indebted 
to  one  Mary  Nix  sold  the  wine  to  her  for  40/.  then 

(/)  Dick  v.  Lumsdon,  Pceke's  C  N.  P.  189. 
(g)  Kinlock  v.  Crwg,  3  T.  R   119. 

(.h)  Diet.  Ashurst,  J.  Lickbarrow  v.  Mason,  2  T.  R.  63 


Stoppage  in  transitu.  214 

paid  to  him,  and  the  amount  of  his  debt,  and  soon 
afterwards  became  bankrupt,  and  the  agents  of  the 
consignors  having  paid  the  duties,  and  obtained  the 
goods,  Mrs.  Nix  brought  an  action  against  them 
for  the  value.  The  cause  was  tried  before  Lord 
Ellenborough,  and  it  was  insisted,  on  behalf  of  the 
plaintiff,  that  there  was  no  difference  between  the 
endorsement  of  a  bill  of  lading  by  the  consignor, 
and  the  sending  it  enclosed  in  a  letter  of  this  im- 
port. But  his  lordship  declared  himself  to  be  of  a 
different  opinion,  and  held  that  the  right  of  the 
consignor  was  not  devested  under  these  circum- 
stances.^ 

2dly.  With  respect  to  the  effect  of  the  bill  of 
lading  in  enabling  the  consignee  to  transfer  the 
property  to  a  third  person,  bona  fide,  and  for  a  va- 
luable consideration  free  from  the  right  of  stop- 
page in  transitu  by  the  consignor.  It  does  not  ap- 
pear to  have  been  disputed  or  denied  by  any  deci- 
sion, that  the  consignee  of  goods  on  credit  might 
assign  his  interest  in  them  to  *a  third  person,  by  an  *  215 
assignment  in  proper  form  of  the  bill  of  lading  ;  and 
the  cases  of  Evans  v.  Martlett,  1  Ld.  Raym.  271. 
12  Mod.  156.  S.  C.  Wright  v.  Campbell,  4  Burr, 
2046.  1  Bla.  R.  628.  S.  C.  and  Caldwell  v.  Ball, 
1  T.  R.  205.  have  placed  that  point  beyond  dis- 
pute ;  and  it  was  not  until  a  late  period  that  it  be- 
came a  question,  whether  the  consignee  could  so 
far  tranfer  the  property  in  the  goods  to  a  third  per- 

(i)  Nix  v.  Olive,  sitting's  at  Guildhall,  before  Lord  Ellenborough,  Ch 
.f.  after  Trin.  Term,  1805,  cited  Abbot  *n  Ship.  377 '. 


215  STOPFAGE  IN  TRAESlTU. 

son  by  an  assignment  of  the  bill  of  lading  bona  fide,, 
and  for  a  valuable  consideration,  as  to  divest  the 
consignor's  right  to  stop  them  in  transitu.  The 
rule  indeed  laid  down  by  Lord  Mansfield  in  the 
case  of  Wright  v.  Campbell,  that  "  if  the  goods  are 
bona  fide  sold  by  the  factor  at  sea,  (as  they  may 
be  where  no  delivery  can  be  given,)  the  sale  will 
be  good  :  the  vendee  shall  hold  them  by  virtue  of 
the  bill  of  sale,  though  no  actual  possession  is  de- 
livered ;  and  the  owner  can  never  dispute  with  the 
vendee,  because  the  goods  were  sold  bona  fide  and 
with  the  owner's  own  authority,"  is  directly  in  fa- 
vour of  the  affirmative  side  of  this  question  ;  but 
that  case  was  decided  on  the  ground  of  collusion, 
and  this  question  was  not  made  the  principal  point 
of  any  decision,  until  those  of  Lickbarrow  v.  Ma- 
216  son,  2  T.  R.  63.  *and  Mason  v.  Lickbarrow,  1  Hen. 
Bla.  357.  The  circumstances  of  which  cases  were 
as  follow  :  Messrs.  Turing  and  Co.  shipped  goods 
at  M'ddkburgh  for  Liverpool,  by  the  order  of  Free- 
man of  Rotterdam,  and  drew  bills  of  exchange  for 
the  price,  (which  were  accepted  by  Freeman,)  and 
took  from  the  master  three  bills  of  lading  for  deli- 
very of  the  goods  to  order  or  assigns,  two  of  which 
they  endorsed  in  blank,  and  transmitted  them,  to- 
gether with  an  invoice  ,  to  Freeman  at  Rotterdam 3 
who  sent  (hem  and  the  invoice  to  the  plaintiffs  at 
Liverpool,  in  the  same  state  in  which  he  received 
them,  that  they  might  receive  and  sell  the  goods 
on  his  accounl  ;  and  drew  bills  of  exchange  upon 
them  to  nearly  the  amount,  which  the  plaintiffs 
ipted;  but  between  the  ship's  departure  and 


STOPPAGE    IN    TRANSITU,  216 

her  arrival  at  Liverpool,  Freeman  became  a  bank- 
rupt, and  absconded,  and  Turing  and  Co.  sent  ano- 
ther of  the  bills  of  lading  to  the  defendants,  en- 
dorsed specially  for  delivery  to  them  ;  and  they 
thereupon  obtained  the  goods  from  the  master. 
Turing  and  Co.  afterwards  paid  the  bills  of  ex- 
change drawn  by  them  upon  Freeman,  and  the 
plaintiffs  paid  those  which  Freeman  had  drawn 
upon  them.  Upon  these  facts,  the  court  of  king's 
bench,  after  *solemn  argument  upon  demurrer  to  *217 
the  evidence,  decided  that  by  an  assignment  of  the 
bill  of  lading  by  the  consignee  to  a  third  person, 
for  valuable  consideration,  and  without  notice  to 
the  assignee  that  the  goods  were  not  paid  for,  the  . 
property  was  absolutely  transferred  to  the  assignee, 
and  that  the  consignor  could  not  after  such  an  as- 
signment of  the  goods  stop  them  in  transitu,  (which 
he  might  have  done  against  the  original  consignee,) 
because  the  court  considered  it  a  settled  principle 
of  law,  that  wherever  one  of  two  innocent  persons 
must  suffer  by  the  acts  of  a  third,  he  who  was  ena- 
bled such  third  person  to  occasion  the  loss,  must 
sustain  it ;  and  the  consignor  by  endorsing  the  bill 
of  lading  to  the  consignee,  by  his  own  act  empow- 
ered the  latter  to  assign  it :  a  bill  of  lading  direct- 
ing the  delivery  of  the  goods  to  the  consignee,  by 
name,  or  to  the  order  of  the  consignor,  and  en- 
dorsed by  him  in  blank,  or  to  a  particular  con- 
signee, being  to  be  considered  as  an  instrument  in 
its  nature  transferable,  and  similar  to  a  bill  of  ex- 
change, of  which  though  as  between  the  drawer 
and  the  payee,   the  consideration  may  be   gone 


217  STOPPAGE  IN  TRANSITU. 

into,  yet  it  cannot  as  between  the  drawer  and  an 
'218  endorsee,  because  it  would  be  enabling  the  Origi- 
nal parties  to  assist  in  a  fraud,  and  in  the  same 
manner,  if  the  delivery  of  a  bill  of  lading  were  not 
in  effect  a  delivery  of  the  goods  themselves,  as  be- 
tween the  consignor  and  third  persons,  it  would 
enable  the  consignee  to  make  the  bill  of  lading  an 
instrument  of  fraud,  and  this  rule  is  founded  purely 
on  principles  of  law,  and  not  on  the  custom  of 
merchants  :  the  custom  of  merchants  only  esta- 
blishing that  such  an  instrument  may  be  endorsed; 
but  the  effect  of  such  endorsement  being  a  ques- 
tion of  law,  which  is,  that  as  between  the  original 
parties,  the  consideration  may  be  enquired  into, 
though  when  third  persons  are  concerned  it  cannot. 
And  lastly,  that  the  case  of  Snee  v.  Prescot,  1  Atk. 
245.  was  determined  only  upon  equitable  grounds. 
This  decision  was  afterwards  reversed  in  the  ex- 
chequer chamber,(/c)  on  the  ground,  that  the  only 
effect  of  the  endorsement  of  a  bill  of  lading,  is  to 
give  to  the  holder,  or  endorsee,  a  right  to  receive 
the  goods  and  to  discharge  the  master  of  the  ship, 
as  having  performed  his  undertaking  ;  that  if  it 
were  allowed  to  have  any  further  effect,  the  pos- 
session of  the  bill  of  lading,  would  have  a  greater 
219  *effcct,  than  the  actual  possession  of  the  goods 
themselves  ;  for  though  the  possession  of  the  goods 
is  prima  facicy  evidence  of  title,  mere  possession, 
without  a  just  title,  gives  no  property,  and  the  per- 
son to  whom  such  possession  is  transferred  by  dc- 

'k)   Maflonv,  lirkburrow,  1  II  Rla.  35!* 


STOPPAGE  IN  TRANSITS.  219 

livery,  must  take  his  hazard  of  the  title  of  his  au- 
thor.    That,  as  the  endorsement  of  the  bill  of 
lading  is  an  assignment  of  the  goods  themselves,  it 
differs  essentially  from  the  endorsement  of  a  bill  of 
exchange,  which  is  the  assignment  of  a  debt  due 
to  the  payee,  and  which  by  the  custom  of  trade 
passes  the  whole  interest  in  the  debt,  so  complete- 
ly, that  the  holder  of  the  bill  for  a  valuable  consid- 
eration without  notice,  is  not  affected  even  by  the 
crime  of  the  person  from  whom  he  received  it. 
That  bills  of  lading  differ  essentially  from  bills  of 
exchange,  in  another  respect,  as  the  latter  can  only 
be  used  for  the  specific  purpose  of  extending  credit 
by  a  speedy  transfer  of  the  debt,  which  one  person 
owes  to  another,  to  a  third  person.    But  the  former 
may  be  assigned  for  as  many  different  purposes  as 
the  goods  may   be  delivered,  either  to  the  true 
owner  of  the  goods  by  the  freighter,  who  acts  mere- 
ly as  his  servant,  or  to  a  factor  to  sell  for  the  owner, 
or  by  the  seller  of  goods  to  the  buyer.     That  *they    *  22© 
are  in  no  certain  form,  and  seldom  upon  the  face 
of  them  bear  any  indication  of  the  purpose  of  their 
endorsement,  and  often  express  a  false  account  and 
risk.     That  to  such  an  instrument,  so  various  in  its 
use,  it  seems  impossible  to  apply  the  same  rules  as 
govern  the  endorsement  of  bills  of  exchange  ;  and 
that  the  silence  of  all  authors  treating  of  commer- 
cial law,  is  a  strong  argument  that  no  general  usage 
has  made  them  negotiable  as  bills  of  exchange  ; 
and  that  evidence  appears  to  have  been  given  in 
other  cases,  that  the  received  opinion  of  merchants 
was  against  their  being  so  negotiable.     That  the 


220  STOPPAGE  IN  TRANSITU. 

negotiability  of  bills  and  promissory  notes,  is  found- 
ed on  the  custom  of  merchants  and  positive  law  \ 
but  as  there  is  neither  any  positive  law,  nor  any 
custom  of  merchants,  that  can  apply  to  a  bill  of 
lading,  it   is  therefore  not   negotiable   as   a  bill, 
though  assignable,  and  passes  such  right,  and  no 
better,   as  the  person  assigning  had  in  it.     That 
the  oldest  of  our  law  books  consider  payment  of 
the  price,  (day  not  being  given,)  as  a  condition  pre- 
cedent implied  in  the  contract  of  sale  ;  and  that 
the  vendee  cannot  take  the  goods,  or  sue  for  them 
without  tender  of  the  price.     That  in  the  simpli- 
city of  former  times,  a  delivery  of  actual  posses- 
221     sion  to  the  vendee  *or  his  servant,  was  always  sup- 
posed, but  from  the  variety  and  extent  of  dealing 
which  the  encrease  of  commerce  introduced,  a  de- 
livery was  allowed  to  be  presumed  from  circum- 
stances by  which  the  property  was  so  far  vested  in 
the  vendee,  as  to  enable  him  to  assign  the  goods, 
and  maintain  an  action  against  a  third  person  into 
whose  hands  they  had  come  ;  but  the  title  of  the 
vendor  still  continued  until  the  goods  came  into 
the  actual  possession  of  the  vendee :  and  hence 
the  vendor  had  the  right  of  stopping  the  goods  in 
transitu,  which  is  a  right  founded  on  legal  as  well 
as  equitable  principles,  and  not  on  a  mere  personal 
exception  to  the  consignee,  precluding  his  demand, 
on  the  merjB  ground  of  its  being  unconscionable, 
but  extends  as  well  to  his  assignee  for  a  valuable 
consideration,  and  without  notice.    This  judgment 
was  by  a  second  writ  of  error  brought  before  the 
house  oflords,  when  a  long  and  elaborate  opinion 


Stoppage  in  transitu.  221 

was  delivered  by  B idler,  J.(/)  in  which  he  adhered 
to  the  judgment  he  had  before  delivered  in  the 
same  case  in  the  court  of  king's  bench,  arguing 
first,  from  a  long  series  of  authorities,  that  it  was 
clear  that  by  a  bill  of  lading  and  the  legal  assign- 
ment *of  it,  the  absolute  property  passes  to  the  as-  *  2*2 
signee ;  and  secondly,  that  the  consignor  has  no 
right  to  stop  the  goods  in  transitu  as  against  the 
assignee,  that  right  being  founded  on  equity,  though 
afterwards  adopted  by  courts  of  law  ;  and  what  Ld. 
Hardwicke  said  in  the  case  of  Snee  v.  Prescott,  1 
Atk.  245.  with  respect  to  liens,  that  "  where  goods 
have  been  negotiated  and  sold  again,  it  would  be 
mischievous  that  the  vendor  or  factor  should  have 
a  lien  on  the  price,"  applying  equally  to  cases  of 
stoppage  in  transitu,  and  that  doctrine  being  in 
fact  expressly  applied  to  such  cases  by  the  court  of 
king's  bench,  in  Lempriere  v.  Pasley,  2  T.  R.  485. 
And  the  circumstance  of  the  consignor's  interest 
being  first  provided  for  in  Snee  v.  Prescott,  being 
founded  on  what  is  now  admitted  to  be  a  mistake  in 
law,  in  supposing  that  there  was  a  difference  be- 
tween a  full  and  a  blank  endorsement,  and  that  the 
legal  property  in  the  latter  case  remained  in  the 
consignor.  And  lastly,  no  case  having  ever  arisen 
in  equity,  in  which  a  man  was  suffered  to  seize 
goods  in  transitu  in  opposition  to  one  who  has  a  le- 
gal title,  and  Lord  Hardwicke's  opinion  being 
clearly  against  it ;  and  the  law,  where  it  adopts  the 
reasoning  and  principle  of  a  court  of  equity,  never 

(0  6  East,_25.  in  notis 

24 


*223  STOPPAGE    IN    TPtANSITU. 

having  *exceeded,  and  it  never  being  right  that  it 
should  exceed,  the  bounds  of  equity  itself.  The 
house  of  lords,  however,  thinking  the.  facts  of  the 
case  were  not  laid  before  them  in  such  a  manner  as 
to  warrant  a  decision  of  the  point,  directed  the 
cause  to  be  tried  again  by  a  jury  ;  and  it  was  ac- 
cordingly again  tried,(m)  and  the  jury  found  a  spe- 
cial verdict,  stating  the  same  facts  as  had  been 
given  in  evidence  upon  the  former  trial,  and  fur- 
ther, "  that  by  the  custom  of  merchants,  bills  of 
lading,  expressing  goods  to  have  been  shipped  by 
any  persons  to  be  delivered  to  order  or  assigns,  are, 
at  any  time  before  arrival,  negotiable  and  trans- 
ferable by  the  shipper  to  any  other  person,  by  the 
shipper's  endorsing  his  name,  and  delivering  or 
transmitting  the  same  so  endorsed  to  such  other 
person.  And  that  the  property  is  transferred  to 
such  other  person  by  such  endorsement  and  deli- 
very, or  transmission.  And  that  by  the  custom  of 
merchants,  endorsements  of  bills  of  lading  in 
blank,  that  is,  by  the  shipper,  with  his  name  only, 
may  be  filled  up  by  the  person  to  whom  they  are 
224  so  delivered,  or  transmitted,  with  words  *ordering 
the  delivery  to  such  person.  And  according  to 
the  practice  of  merchants,  the  same,  when  filled 
up,  have  the  same  effect  as  if  they  had  been  done 
by  the  shipper,  when  he  endorsed  the  bill  of  la- 
ding  with  his   name."(«)      The  court  of  king's 

i)  Lickbarrow  v.  Mason,  5  T.  It.  683. 

nee  to  the  same  effect,  was  also  given  in  the  subsequen 
I   ||   illi  |     i  Bos    Si  I'iiI     • 


STOPPAGE    IN    THAN SITU. 


224 


bench,  without  admitting  any  farther  argument, 
gave  judgment  in  conformity  to  their  former  deci- 
sion ;  and  in  order  that  the  question  might  be 
again  carried  to  the  other  tribunals,  another  wril 
of  error  was  brought,  but  afterwards  abandoned, 
and  it  is  now  the  admitted  doctrine  of  our  courts, 
that  the  consignee  may,  under  the  circumstances 
stated  in  this  case,  by  an  assignment  or  delivery  of 
the  bill  of  lading,  confer  an  absolute  right  of  pro- 
perty upon  a  third  person,  indefeasible  by  any 
claim  on  the  part  of  the  consignor. 

Nor  does  the  circumstance  of  the  consignment 
of  the  goods  being  made  to  the  consignee  as  a 
factor,  make  any  difference  in  his  power  of  trans- 
ferring the  goods,  by  assignment  of  the  bill  of  la- 
ding, under  a  contract  nf  sale,  to  a  bona  fide  pur- 
chaser, during  their  transit ;  because  it  is  a  part  *of  *  225 
the  employment  of  a  factor  to  sell  goods  for  his 
principal,  (o) 

But  still  it  is  to  be  observed,  that  the  legal  effect 
of  an  endorsement,  or  delivery  of  a  bill  of  lading, 
by  the  consignor  to  the  consignee,  is  not  necessa- 
rily, and  in  every  case  to  give  the  latter  the  power 
of  depriving  the  former  of  his  right  of  stopping 
the  goods  in  transitu,  by  a  subsequent  endorse- 
ment, or  delivery  of  the  bill  to  a  third  person,  even 
for  a  valuable  consideration,  and  without  collusion, 
but  depends  in  some  measure  upon  the  circum- 
stances of  the  case,  and  the  relation  in  which  the 

'    (o)  Wright  v.  Campbell,  4  Burr.  2046.     Judgment  of  Buller,  J.  in 
Lickbarrow  v.  Mason,  6  East,  25.  in  notis. 


225  STOPPAGE  IN  TRANSITU. 

consignor  and  consignee  stand  with  regard  to  each 
*  226  other  \(p)  and  accordingly  it  has  *been  determined, 
that  a  factor  having  only  authority  to  sell  and  not 
to  pledge  the  goods  of  his  principal,  cannot  devest 
him  of  his  right  to  stop  goods  consigned  to  the 
factor  on  credit,  during  their  transit,  by  endorsing 
or  delivering  over  the  bill  of  lading,  as  a  pledge  to 
a  third  person,  though  the  pawnee  was  not  aware 
of  the  factor's  want  of  authority  to  dispose  of  the 
property  in  that  way. (q) 

And  where  the  assignee  of  the  consignee  pur- 
chases the  goods,  with  notice  of  such  circumstances 
as  render  the  hill  of  lading  not  fairly  and  honestly 
assignable,  he  stands  in  the  same  situation  as  the 
consignee,  and  the  consignor  is  equally  at  liberty 
to  exercise  the  right  of  stopping  in  transitu  against 
him,  notwithstanding  his  purchase.frj     And  if  the 

{[>)  In  the  case  of  Coxe  v.  Harding',  4  East,  211.  where  a  bill  of  lading* 
was  endorsed  and  transmitted  by  the  consignor  to  an  agent,  to  enable 
him  to  take  possession  of  the  goods  for  the  use  of  the  consignor  in  the 
event  of  the  consignee's  failure;  a  doubt  arose  whether  the  mere  en- 
dorsement of  the  bill  of  lading  to  the  agent  without  consideration, 
would  enable  him  to  maintain  an  action  of  trover  for  the  goods  in  his 
own  name;  but  it  being  determined  by  the  court,  that  under  the  cir- 
cumstances of  that  case  the  property  vested  absolutely  in  the  consignee, 
so  that  the  consignor  himself  could  not  have  sued  for  them,  they  con- 
sidered it  unnecessary  to  decide  the  point  doubted;  they,  however,  at 
the  same  time,  Btrongly  intimated  an  opinion,  that  no  property  passed 
by  such  an  endorsement,  and  consequently  that  no  action  of  trover 
could  be  maintained  by  the  endorsee.  And  Lord  Ellen  borough  has  since 
decided  the  same  point  in  Waring  v.  Coxe,  1  Campb.  It.  369.  in  con- 
formity to  that  opinion. 

(7)  Newsom  V.  Thornton,  6  East,    17- 

(r)  Wright  v.  Campbell,  1  Run-.  2046  Solomons  v.  Nissen,  2  T.  It. 
674.     Cuming  v.   Brown,  9  East,  5U6.     If  the  consignor  has  given  his 


STOPPAGE  IN  TRANSITU.  *227 

assignee  take  the  *assignment  of  the  bill  of  lading 
from  the  consignee,  with  notice  that  they  are  not  paid 
for,  and  take  upon  himself  the  payment  of  them,  un- 
der an  agreement  that  the  vendee  and  himself  shall 
be  jointly  interested  in  the  proceeds  of  them,  th£ 
assignment  will  be  clearly  fraudulent,  and  there- 
fore will  not  deprive  the  vendor  of  his  right  to  stop 
the  goods  in  transitu,  upon  the  failure  of  the  con- 
signee without  payment.^ 

*The  mere  circumstance,  however,  of  the  as- 
signee of  the  bill  of  lading  knowing  at  the  time  of 
the  assignment  of  it  to  him,  that  the  consignor  had 
not  been  paid  in  money  for  the  cargo,  but  only  by 
the  consignee's  acceptances,  payable  at  a  day  not 
then  arrived,  is  not  of  itself,  and  without  the  ex- 
istence of  any  other  circumstances  showing  fraud, 

assent  to  the  transfer,  and  the  assignee  has  paid  the  consignee  for  them, 
it  seems  the  consignor  would  in  that  case  be  devested  of  his  right  of 
stoppage.  Where  the  fairness  of  the  assignment  of  the  bill  of  lading 
by  the  consignee,  and  consequently  the  consignor's  right  to  stop  the 
goods  in  transitu  may  be  questionable,  (which  must  be  frequently  the 
case  in  this  country,)  it  seems  that  the  law  does  not  impose  the  burden 
upon  the  master  of  the  ship,  of  determining  the  question  at  his  own 
risk,  though  he  may  subject  himself  to  it,  by  entering  into  an  express 
agreemeut  as  to  the  delivery  of  the  goods  intrusted  to  him.  See  Fearon 
v.  Bowers,  1  H.  Bla.  364.  in  notis.  Caldwell  v.  Ball,  1  T.  R  205.  Mills 
v.  Ball,  2  Bos.  &.  Pul.  457-  and  see  ante  Chap.  II.  note  (d)  and  Mr.  Ab- 
bot's Treatise  on  Shipping,  part  3.  c.  9.  s.  24.  who  there  states  what  he- 
conceives  to  be  the  proper  mode  of  proceeding  for  the  master  to  adopt, 
where  the  validity  of  the  assignment  of  the  bill  of  lading  appears 
doubtful. 

(s)  Solomons  v.  Nissel,  2  T.  R.  674.  There  were  two  sufficient 
grounds  for  the  decision  which  was  made  in  this  case.  1.  That  of 
fraud  between  the  vendee  and  the  assignee  ;  and  2.  Their  being  part- 
ners in  the  transaction. 


228 


STOPPAGE    IN    TRANSITU. 

sufficient  evidence  of  it,  to  render  the  assignment 
defeasible,  by  the  consignor's  stopping  the  cargo  in 
transitu ;  though  if  the  assignee  had  been  aware 
at  the  time  of  the  assignment,  that  the  consignee 
was  unable,  from  the  state  of  his  circumstances, 
to  answer  his  acceptances,  it  would  have  been  a 
sufficient  proof  of  fraud  in  the  former  to  invali- 
date his  title  against  the  consignor.(0 

And  where  the  vendor  of  goods  for  bills  payable 
at  a  future  day,  assents  to  a  sale  of  them  by  the 
vendee,  to  a  third  person,  and  allows  such  person 
to  exercise  such  acts  of  ownership  upon  the  goods 
as  amount  in  effect  to  a  delivery  of  them,  (as 
marking  them  with  his  initials,)  the  original  vendor 
cannot  stop  them  in  transitu,  upon  the  failure  of 
the  original  vendee  without  payment  of  the  bills, 
229  though  the  ^original  vendor  was  ignorant,  until 
that  failure  took  place,  that  the  second  vendee  had 
actually  paid  for  the  goods.(w) 

(t)  Cuming  v.  Brown,  9  East,  506. 
(u)  Stoveld  v.  Hughes,  14  East,  308. 


INDEX 

TO    THE 

PRINCIPAL  MATTERS 

CONTAINED 

IN  THE  LAW  RELATIVE  TO  LIENS. 


A. 

ACCEPTOR  page 

Of  a  bill  of  exchange,  has  it  seems  a  lien  upon  effects  of  the 
drawer  in  his  hands  .  .  .  129.  n.  (c) 

AGENT.     See  Attorney,  Lien,  Factor,  Insurance  Broker. 

1.  Particular  liens  may  be  derived  through  the  acts  of 
agents  or  servants         .....  28 

2.  And  general  liens  also  38 

3.  But  no  lien  can  be  acquired  on  goods  delivered  by  an 
agent,  or  other  person  to  whom  the  goods  do  not  belong, 
for  a  general  balance  due  from  such  agent  or  other  per- 
son, on  his  own  account  ....  39 

4.  And  where  the  act  of  the  agent  is  wholly  unauthorized 
and  tortious,  no  lien  can  be  acquired  by  it  51 

AGISTOR 

Has  no  lien  by  the  common  law  ...  13 

ASSUMPSIT.     See  Lien. 

A  lien  may  be  advanced  as  a  defence    in  an  action  of  as- 
sumpsit ......  2 

ATTORNEY. 

1.  Has  a  general  lien  upon  all  papers  of  his  client  in  his 
hands  for  his  costs  ....  3576 

2.  Has  a  lien  upon  papers  in  his  hands  as  steward  of  a 
court  ......  77 


INDEX 

VTTORNEY—  Continued. 

3.  Has  a  lien  when  acting  as  agent  in  town  to  a  country 
attorney  .....  76.  n.  (a) 

4.  Has  no  general  lien  upon  papers  which  belong  to  a 
third  person,  or  in  contravention  to  the  right  of  a  third 
person  ......  78 

5.  Has  no  lien  upon  papers  delivered  upon  a  special  agree- 
ment, or  trust  not  to  be  subject  to  a  lien  .  79 

6.  Has  no  lien  where  security  is  taken  for  the  money  ib. 

7.  Has  no  lien  upon  papers  received  after  the  bankruptcy  of 
his  client  ......  80 

8.  Has  a  lien  upon  judgments  recovered  for  his  clients  for 
his  costs,  and  may  obtain  an  order  either  in  a  court  of  law 
or  equity,  to  stop  them  from  receiving  money  recovered 
till  his  bill  is  paid        .....  ib. 

9.  Has  a  lien  for  his  costs  on  money  levied  by  the  sheriff  un- 
der an  execution  ....  82 

10.  Has  a  lien  upon  a  sum  awarded  in  favour  of  his  client         83 

11.  Difference  between  the  practice  of  the  courts  of  K.  B. 
C.  P.  and  Chancery,  with  respect  to  the  lien  of  attornies 
and  solicitors  upon  judgments  and  sums  recovered  by 
their  clients.  In  the  court  of  K.  B.  the  attorney  is  allow- 
ed a  lien  paramount  to  any  claim  of  set-off  by  the  par- 
ties ;  but  in  the  courts  of  C.  P.  and  Chancery  the  lien  is 
subject  to  the  equitable  claims  of  the  parties  ib 

12.  None  of  the  courts  will  permit  the  attorney's  lien  to  be 
defeated  by  a  collusive  settlement  between  the  plaintiff 
and  defendant  ...  .86 


B. 


BAILEE. 

Lien  of  by  the  common  law  13 

BANKER. 

1.  Has  a  general  lien  .  .  35.89 

'2.   What  is  a  waiver  of  his  lien  89 

3-  Cannot  give  a  lien  to  a  customer  by  a  deposit  of  particu- 
lar securities  among  those  belonging  to  other  customers, 
without  giving  notice  of  such  deposit  to  the  customer  in 
whose  favour  it  is  intended,  66.     Sec  Lien  of  Pawnee. 

BANKRUPTCY.     See  Fraudulent  Delivery,   Po.iseeston,   Chvses  in 
Action 


TO  THE  LAW  OF  LIEN. 

BANKRUPTCY—  Continued. 

1.  No  lien  can  be  acquired  upon  goods  delivered  with  in- 
tent to  give  a  fraudulent  preference  in  the  event  of  bank- 
ruptcy ....*.  S3 

2.  No  lien  can  be  acquired  upou  property  delivered  after 
the  commission  of  an  open  act  of  bankruptcy  by  the 
owner  ......  59 

3.  But  under  some  circumstances  a  lien  may  be  acquired 
upon  property  delivered  after  a  secret  act  of  bankruptcy      ib 

BOOKKEEPER. 

In  Smithfield  Market  has  no  lien  upon  money  received  by 
him  for  cattle  sold  there,  against  the  owner  for  a  general 
balance  due  to  him  from  the  salesman  39.  n.  (c) 

c. 

CALICO  PRINTER. 

1.  Has  a  general  lien  ....  34.90 

2.  But  only  for  such  balance  as  arises  from  work  in  the 
course  of  his  trade  ....  90 

CAPTAIN  OF  A  SHIP.     See  Carriers  by  Water,  Ship. 

1.  Has  no  lien  on  ship  for  wages  .  .  17.  n.  (§■) 

2.  Does  not  it  seems  lose  his  lien  for  freight,  by  depositing 
the  goods  in  the  king's  warehouse  pursuant  to  an  act  of 
parliament  .....  72.98 

CARPENTER                 7.  n.  (§■) 

Not  obliged  to  receive  employment                   .  .             17 
©ARRIERS  IN  GENERAL.     See  Stoppage  in  Transitu. 

1.  Have  a  particular  lien        ....  16.90 

2.  Though  the  goods  delivered  to  them  are  stolen  92 

3.  But  have  no  general  lien  by  the  common  law         .  92.93 

4.  May  acquire  a  general  lien  by  express  contract  93 

5.  But  not  it  seems  by  public  notices  that  they  will  carry 
only  under  condition  of  having  such  lien         .  .  38 

6.  May  acquire  a  general  lien  by  implication  from  the  gene- 
ral usage  of  trade,  or  of  the  parties  .  .  92 

7.  Not  yet  generally  found  that  they  have  no  general  lien 
by  the  usage  of  their  trade,  though  determined  so  in 
one  instance  .....  35 

8-  Lose  their  lien  by  parting  with  possession  of  the  goods       94 
9.  When  they  are  by  the  usage  of  their  trade  to  be  paid 
for  the  carriage  of  the  goods  by  the  consignor,  have  no 

25 


INDEX 

CARRIERS  IN  GENEE  AL—  Continued. 

right  to  retain  them  against  the  consignee  for  a  general 
balance  due  to  them  from  the  consignor  .  39.94 

CARRIERS  BY  WATER.     See  Captain,  No.  2. 

1.  Owners  and  masters  of  general  ships  carrying  goods  for 
hire  on  the  high  seas  or  navigable  rivers,  are  common 
carriers,  and  have  the  sime  lien  as  carriers  by  land  95 

2.  Master  of  a  vessel  may  detain  the  luggage  of  a  passenger 

for  his  passage  money  ....  97 

3.  If  the  master  voluntarily  parts  with  the  goods  out  of  his 
own  or  his  agent's  hands,  he  loses  his  lien  upon  them  99 

CHOSES  IN  ACTION. 

What  a  sufficient  transfer  of  them  to  create  a  lien  63 

CLERKS. 

1.  Lien  of  the  clerks  of  the  several  courts  .  .  86 

2.  In  Chancery  have  a  lien  on  paper  in  their  hands  until 
their  bills  are  paid,  though  not  employed  immediately  by 
the  client  but  by  his  country  solicitor  .  .  ib. 

3.  Six  clerk  has  a  lien  upon  papers  in  his  hands  for  his  fees      88 

4.  Not  decided  whether  a  clerk  of  the  assize  has  a  lien  upon 
papers  in  his  hands  for  his  fees  ...  38 

COACHMAKER  .  .  15.  n.  (6) 

Acquires  no  lien  for  repairs  done  to  a  chaise  tortiously  de- 
livered to  him  against  the  right  owner  ,  .  51 
COSTS.     See  Attorney. 

D. 

DELIVERY.     See  Bankruptcy,  Fraudulent  Delivery,  Vendor* 

DISTRESS. 

No  lien  for  the  keep  of  an  horse  distrained  to  compel  an  ap- 
pearance in  an  hundred  court         .  .  .  27.4? 

DYER 

Has  a  particular  lien  .  .  99 

Rut  not  a  general  lien  without  an  express  contract  100 

E. 

EQUITY 

Courts  of  equity  will  decide  exactly  as  courts  of  law  would 
hi  case  of  lien.  4.  n.  (c).     See  Lien. 
RSTi:  W 

lord  of 'lie  Manor  has  a  lien  for  the  keep  of  26 


TO  THE  LAW   OF  LIEN. 

EVIDENCE 

1.  Oflien  by  usage  .  .  31.46 

2.  Of  fraud.     See  Fraudulent  Delivery. 

F. 

FACTOR 

1.  Has  a  general  as  well  as  a  particular  lien  upon  goods  in 

his  hands  as  a  factor  ....  83.10:: 

2.  For  a  debt  which  he  is  only  a  surety  .  .  103 

3.  Has  a  lien  upon  the  price  of  goods  sold  by  him  in  the 
hands  of  the  purchaser  where  he  sells  under  a  del  credere 
commission,  as  is  in  advance  to  his  principal  by  actual 
payment  ......  104 

4.  Though  he  knew  his  principal  to  be  insolvent  at  the  time 
of  the  sale,  or  though  the  money  be  not  paid  the  factor 
until  after  the  bankruptcy  of  the  principal,  provided  the 
goods  were  sold  before  it  .  .  .         64.104 

5.  Has  a  lien  for  his  general  balance  upon  a  policy  of  insur- 
ance which  he  has  effected  for  his  principal  .  105 

6.  If  the  consignor  of  a  cargo  direct  his  factor  to  insure  it, 
and  afterwards  assigns  both  cargo  and  policy  of  insurance 
by  endorsement  of  the  bill  of  lading,  the  assignee  takes 
the  policy  subject  to  the  factor's  lien  for  the  general  ba- 
lance due  to  him  from  the  consignor  .  ib 

7.  Death  of  principal  when  so  far  a  revocation  of  factor's 
authority  as  to  prevent  his  lien  .  .  106 

8.  Has  no  lien  where  he  enters  into  a  special  agreement 
with  his  principal  to  pay  over  the  proceeds,  or  for  a  par- 
ticular mode  of  payment,  or  enter  into  a  special  agree- 
ment with  his  principal,  or  have  notice  for  a  special 
agreement  between  his  principal  and  a  third  person  as  to 
the  application  of  the  money         .  .  .  49.108 

(  9.  Has  no  lien  on  the  goods  of  his  principal  for  debts  which 

accrued  before  the  relation  of  principal  and  factor  ex- 
isted between  them  ....  10& 

10.  Can  acquire  no  lien  on  goods  delivered  to  him  after  the 
commission  of  an  open  act  of  bankruptcy  by  his  principal     116 

11.  An  advance  of  money,  or  an  acceptance  of  goods  not 
excepted  from  this  rule  as  a  payment  within  1  Jae.  1.  c. 

15.  s.  14  •  .  .  60 

12.  Has  a  lien  upon  goods  which  do  not  come  into  his  actual 
possession,  though  he  has  accepted  bills  upon  the  faith 


INDEX 

FACTOR—  Continued. 

of  the  consignment  and  paid  part  of  the  freight  111 

13.  Loses  his  lien  by  parting  with  possession  .  68.111 

14.  Cannot  pledge  the  goods  of  his  principal  52.136.7 
FARRIER 

1.  Has  a  particular  lien  upon  a  horse  for  the  price  of 
shoeing  it  .....  16.113 

2.  Whether  he  may  detain  a  horse  for  the  expense  of  cur- 
ing it  of  a  disorder  and  keeping  it  during  the  cure  re- 
mains undecided  .  .  .  .  113 

3.  But  if  he  enters  into  a  special  agreement  for  a  specific  or 

a  reasonable  sum  he  will  certainly  have  no  lien  48.114 

FRAUD      See  Fraudulent  Delivery,  Bankruptcy. 
FRAUDULENT  DELIVERY  OF  PROPERTY.     See  Bankruptcy. 

1.  'Whether  the  delivery  be  fraudulent  must  depend  upon 
circumstances  .  .  .  .  .  53 

2.  Conclusive  evidence  of  fraud        ...  54 

3.  Presumptive  evidence  of  fraud  ...  56 

4.  Conclusive  evidence  of  fairness  .  .  57 

5.  Presumptive  evidence  of  fairness        ...  58 
FULLER 

Has,  it  seems,  a  lien  for  his  general  balance  by  the  custom 
of  Exeter  .  .  .  .  .  34.114 

GUEST.     See  Innkeeper. 

Leaving  a  horse  at  an  inn,  sufficient  to  constitute  a  man 
a  guest  .  .  .  .  .  117 

I. 

INDIA  BONDS. 

Assignable  by  delivery  .  .  136.  n  (o) 

INNKEEPER.     See  Guest. 

1.  Bound  to  receive  goods,  and  therefore  has  a  particu- 
lar lien  which  entitles  him  to  detain  the  guest  himself, 
and  it  seems  his  goods,  for  the  price  of  his  own  lodging 
and  entertainment,  and  his  horse  for  that  of  its  provender 
and  stabling  .  .  .  .  .  115 

2.  Hus  only  a  particular  lien  .  ,  .  118 

3.  Waives  his  lien  by  making  a  special  agreement  for 
payment  >  .  .  .119 


TO  THE  LAW  OF  LIEN. 

INNKEEPER—  Continued. 

4.  Cannot  sell  or  use  a  horse  detained,  except  by  the  parti- 
cular customs  of  London  and  Exeter  .  119 

5.  His  lien  in  some  measure  restricted  by  11  &.  1?  W.  8  c. 

15.  s.  2.  120 

INSURANCE  BROKER. 

1.  lias  a  general  lien  upon  all  policies  of  his  principal,  and 
money  received  upon  those  policies  in  his  hands  121 

2  Has  a  lien  upon  money  received  upon  a  loss  adjusted  after 
the  bankruptcy  of  las  principal  under  a  policy  in  his  hands 
before  the  bankruptcy  ....        63.121 

3.  May  recover  his  lien  upon  a  policy  which  he  has  given 
up  to  his  principal,  by  regaining  possession  even  under  a 
false  pretence  .....  70.121 

4.  Where  he  has  effected  an  insurance  for  an  agent,  has  no 
lien  upon  the  policy  against  the  principal  for  a  general 
balance  due  from  the  agent,  if  he  knew  that  he  was  em- 
ployed by-a  mere  agent  ....  122 

L. 

LIEN. 

2.  Meaning  and  definition  of  the  term  1 

2.  Nature  and  extent  of  the  right  .  .  2  to  7 

3.  A  defence  in  actions  of  trover  and  assumpsit,  and  in  suits 

in  equity  .  .  2 

4.  Analogy  between  the  rights  of  lien  and  set  off  2,3,4 

5.  Difference  between  them  .  .  .     4,5,6 

6.  Origin  and  different  species  of  lien  .  .  7,8,9 
7-  By  the  common  law                .                .                .  7. 13 

8.  By  usage  ...  .  .  7-31 

9.  By  express  agreement  .  .  .  8-27 
Particular  lien. 

1.  In  what  cases  they  may  be  acquired  by  the  common  law. 

1.  By  bailees  .  .  .  .13 

2.  By  persons  not  bailees  ...  22 

3.  Where  the  goods  come  into  the  possession  of  the  party  by 
finding  .  ...  23 

4.  Where  they  are  taken  possession  of  under  some  legal 
right  26 

2.  By  express  contract. 

May  exist  in  any  case  where  the  parties  choose  to  stipulate 
for  it  .  ...  .  .27 


INDEX 

LIEN—  Continued. 

3.  Through  agents  and  servants,  and  persons  to  whom  the 
property  does  not  belong.     See  Agent  .  .        28 

General  lien. 

Why  not  favoured  .  .  .  .11 

1.  In  what  cases  they  may  be  acquired  by  the  general  usage 

of  trade.     See  Trades,  Usage.  .  31 

When  once  proved  and  allowed  to  exist,  not  to  be  after- 
wards disputed  .  .  .  .34 

2.  By  the  particular  usage  of  the  parties  .  .  35 
Proof  of  their  having  before  dealt  upon  the  footing  of  such 

a  lien,  presumptive  evidence  that  they  continue  to  deal 
upon  the  same  terms  .  .  35 

3.  By  express  contract  .  .  .36 

1.  May  be  claimed  by  any  person  upon  the  goods  of  another 

in  his  hands  where  an  express  assent  is  given  by  the  owner  ib 

2.  And  may  be  acquired  by  tradesmen  not  compellable  by  law 
fo  receive  goods,  by  public  notices  that  they  will  not  re- 
ceive but  under  that  condition,  against  any  customers 
whom  they  can  prove  to  have  been  aware  of  such  notice      ib 

3*.  But  persons  compellable  to  receive  goods  cannot  acquire 
such  lien  by  suck  notices  without  the  express  assent  of 
their  customers  ■  •  .  .  .  37 

4.  Through  the  acts  of  servants  or  agents  .  .        38 

5.  In  what  cases  no  general  lien  can  be  acquired.  See 
Agent.  .»-...  39 

Where  it  would  interfere  with  the  prior  common  law  right 
of  another  .  •  •  •  .         42 

Wlien  no  sort  of  lien  can  be  acquired.     See  Distress. 

1.  By  a  wrongful  act  .  .  .  .  .43 

2.  By  misrepresentation  •  •  .  .  ib- 

3.  By  a  voluntary  and  unauthorized  assumption  of  posses- 
sion. .  •  •  •  •  .  .44 

4   Not  by  a  tortious  pledge  .  .  .  .'51 

5.  Where  the  party  has  entered  into  a  special  agreement 

for  his  reward  .....  47 

6.  Whcro  there  is  an  intent  to  give  a  fraudulent  preference 
in  the  event  of  bankruptcy.  See  Bankruptcy,  Fraudulent 
Delivery*  ■      •  .  .  .  53 

7.  After  an  act  of  bankruptcy,  when.  See  Bankruptcy, 
Fraudulent  Delivery.  ....  59 

8.  Without  posscsbion  of  the  property  on  which  the-  lieu  is 
claimed  <  ■  •  •  -  ..  66 


TO  THE  LAW  OF  XIEN. 

HEN—  Continued. 

When  liens  are  devested  or  -waived. 

1.  When  devested  by  parting  with  possession 

2.  When  not  devested  by  parting  with  possession  70 

3.  Not  devested  by  bankruptcy  ...  73 

4.  Not  devested  by  the  owner's  aliening  the  p»perty  to  a 
third  person  ......  75 

5.  Waived  where  the  right  of  retainer  is  claimed  upon  a 
different  ground  from  that  of  lien  .  .  75 

When  received  .  .  .  .  .  70 

When  transferrable  .  .  70 

May,  it  seems,  be  transferred  to  servants  or  agents  ib. 

LIMITATIONS,  STATUTE  OF 

A  lien  may  be  acquired  for  a  demand  against  which  the  sta- 
tute of  limitations  has  run  .  5,  n.  (/) 
LIVERY  STABLE  KEEPER. 

Has  no  lien  .  .  .  .  .  14 


M. 


MANUFACTURER. 

Not  obliged  to  receive  goods  to  manufacture  .  99 

MASTER.     See  Captain,   Carriers  by  Water. 
MILLER. 

Has  a  particidar  but  no  general  lien  35.124 

MORTGAGE.    See  Pawn,  Pawnee. 

N. 

NOTICES.    See  Carriers,  No.  1. 

P. 

PACKERS. 

Have  not  only  a  particular  but  a  general  lien,  82  n.  (a)  126 

PAWN.     See  Pawnee. 

1   Nature  of,  and    distinction  between  pawns  and  mort- 
gages ......         126,7,8 

2.  A  lien  created  by  it  .  129 

3.  When  a  subject  pledged  as  a  security  for  a  debt  already 
due  shall  be  considered  as  a  security  for  subsequent  loans  ib. 


INDEX 

PAWNEE.     See  Patim. 

1  No  lien  can  be  acquired  by  the  pawnee  where  the  deposit 
is  made  after  the  commission  of  an  open  act  of  bankrupt- 
cy by  the  pawnor  .....       133 

2.  Nor  where  the  deposit  is  made  with  intent  to  give  a  fraud- 
ulent preference  in  the  event  of  bankruptcy  ib» 

3.  Nor  where  the  loan  is  usurious.  134.  See  Tender. 

4.  Nor  where  the  pledge  is  tortious,  though  the  pawnee  was 
ignorant  of  the  pawnor's  want  of  title.  135,6.     See  Factor. 

5.  Pawnee  may  assign  the  pawn  to  a  third  person  140 

6.  Pawnee  devested  of  his  lien  in  the  pawn  by  the  owner,  or 
his  representatives  tendering  the  money  advanced  upon 
it ;  but  not  by  an  execution  upon  the  goods  of  the  pawn- 
or, for  a  debt  recovered  subsequent  to  the  pawning,  nor 

by  the  pawnor's  being  afterwards  attainted  of  felony.  141 

POSSESSION,    See  Liens,- Bankruptcy,  Fraudulent  Delivery,  Choses 
in  Action,  Factor. 
Symbolical  possession  of  property  at  sea  sufficient  to  create 
a  lien  upon  it,  though  actual  possession  be  not  taken  un- 
til after  bankruptcy  .  .  .62" 


s. 


SALVAGE. 

1.  Lien  for  by  the  common  law  .  23 

2.  Recognized  by  statute  ...  23,  n.  (h) 
SEAMEN.     See  Ships. 

SET  OFF.     See  Lien,  No.  4. 

Statutes  .  .  .  3,4,5,6,7 

SHIPS.     See  Captain,  Carriers  by  Water. 

Lien  on,  exists  only  for  repairs  done,  or  necessaries  fur- 
nished, in  a  foreign  port,  and  for  the  wages  of  seamen  and 
officers  beneath  the  rank  of  captain  or  master,  and  for 
salvage,  and  it  seems  for  building,  but  not  for  repairing  a 
ship  ...  .  .         17,n.  (» 

SHIPWRIGHT.  See  Ships. 
SOLICITOR.  See  Attorney 
STATUTES. 

52  Geo.  3.  c.  64.  India  Ronds  135,  n.  (g) 

11  &  12  W.  3.  c.  15,  s.  2.  Innkeepers  .  120 

V!t*c\V iVk.'h.  \  Pa.v™™ts  to  bankrupt*  60.  US 


TO  THE  LAW  OF  LIEN. 

STATUTES—  Continue*. 

19  Geo.  2.  c.  32.  s.  1.     Payments  b.   bankrupts        .  60.110 

21  Jac.  I.e.  21.  Pawns  ....  139 

7  Geo.  2-  c.  15.  v  responsibility  of  masters  and 

26  Geo.  3.  c  86.  s.  I,  2.  3-    I  owners  of  ships  limited   95,  n.  (&) 

12  Ann.  c  18  "\ 

26  Geo.  3.  c.  19.  s.  5.         I    c  , 

48  Geo.  3.  c.  130.  s.  21.       f  Sjdva*e  23"  n-  <*) 

49  Geo.  3.  c.  122.  s.  32.    J 

2  Geo.  2  c.  22.  s.  13.  >      .     »  _  .     „ 

8  Geo.  2.  c.  24.  s.  4.   5  set  off  3  to  7 

5  Geo.  2.  c.  3-  s.  28.  set  off  in  cases  of  bankruptcy  3.7 

46  Geo.  3.  c.  135.  s.  1.  transactions  with  bankrupts     61,110.133 
STOPPAGE  IN  TRANSITU. 

Consignor's  right  to  stop  in  transitu  cannot  be  affected  by 
an  usage  for  the  carrier  to  retain  goods  for  a  general  ba- 
lance due  to  him  from  the  consignee  .  .  40 


T. 


TAYLOR 

1.  Has  a  particular  Hen  .  22,8,142 

2.  But  no  power  to  sell  the  subject  of  the  lien  .  14S 
TENDER 

1.  To  pawnee  not  necessary  where  pledge  tortious  52 

2.  Not  necessary  where  the  goods  are  retained  not  on  ground 

of  lien  .-.••.  75 

3.  Need  not  be  made  to  the  pawnee  of  stolen  goods  138 

4.  Must  be  made  to  the  pawnee  of  goods  obtained  under 
false  pretences  .....  139 

5.  Where  the  loan  is  usurious  .  .  134 
TROVER     See  Lien.             .             •            •           45.50.75.134.138.144 


V. 


VENDOR 

1.  Has  a  lien  upon  the  property  sold  for  the  price,  unless  it 
appear  from  the  conditions  of  the  sale  that  he  relied  upon 
the  personal  credit  of  the  vendee  .  .  143 

2-  Devested  of  his  lien  by  an  actual  delivery  f  the  whole 
of  the  goods  sold,  or  by  a  symbolical  delivery  which  is 
unconditional  ...  .  145 

26 


INDEX 

VENDOR—  Continued. 

3.  But  not  devested  of  his  lien  by  a  symbolical  delivery 
which  is  conditional,  and  of  which  the  conditions  are 
not  performed  .....  146 


u. 


USAGE.     See  Liens,  Camers,  Evidence. 

1.  Liens  by  usage  are  either  by  the  general  usage  of  trade, 

or  the  particular  usage  of  the  parties  .  .  31 

2.  Lien  from  usage  a  matter  of  evidence  7,  n.  (g)  146 

3.  Lien  can  be  created  by  no  other  usage  than  that  of 
trade  .  .  .  7,  n.  (g) 

w. 

WAIVER.     See  Liens,  when  devested.  .  .         48.75 

WHARFINGER. 

1.  Has  a  general  lien  by  the  usage  of  his  trade,  as  well  as  a 
particular  lien  for  the  wharfage  of  goods  .  146 

2.  Not  entitled  to  any  lien  upon  goods  not  actually  landed  at 

his  wharf  ....  147 

3.  Not  entitled  to  any  general  lien  where  the  general  pro- 
perty in  the  goods  is  altered  before  they  arrive  in  his 
hands  .  .  .  .41 


INDEX 

TO    THE 

PRINCIPAL  MATTERS 

CONTAINED 

m  THE  LAW  RELATIVE  TO  THE  RIGHT 

or 

STOPPAGE  IN  TRANSITU, 


A. 

AGENT.     See  Factor,  Principal,  Stoppage  in  Transitu.     No.  18, 19. 

1.  Delivery  to,  when  sufficient  to  determine  the  transitus. 
See  Delivery,  No.  6,7  .  .  183 

2.  When  goods  purchased  by,  may  be  stopt  in  transitu       154,6 
ASSIGNEE.     See  Assignment,  Bill  of  Lading,  Indorsement,  Notice. 

Of  bankrupt  consignee  may  recover  goods  sold  on  credit 
from  the  consignor,  upon  tendering  the  full  price  150 

ASSIGNMENT 

Of  bill  of  lading  by  the  consignee,  when  it  will  transfer 
the  absolute  property  to  the  assignee,  free  from  the  con- 
signor's right  of  stoppage  in  transitu  .  214.24 

B. 

BANKRUPTCY 

Of  consignee,  no  countermand  of  goods  consignee  180 

BILL  of  LADING.     See  Assignee,  Assignment,   Delivery,  No.  10. 
Factor,  No.  3.  Freight,  Indorsement. 

1.  If  indorsed  and  transmitted  in  trust  the  goods  cannot  be 
stopt  in  transitu  while  the  trust  remains  unsatisfied  164 

2  If  conditional,  and  the  condition  unperformed,  the  con- 
signor may  stop  the  goods  in  transitu  .  .  165 

".  Theonlv  kind  of  document  which  has  been  determined 


INDEX 

BILL  OF  LADING—  Continued. 

to  have  the  effect  of  enabling1  the  consignee  to  transfer  pro- 
perty in  transitu.     See  Indorsement  .  .  21$ 
4.  How  far  its  negotiability  may  be  restrained              .             212 

c. 

CARRIER.     See  Master,  Ship. 

1.  Cannot  defeat  the  consignor's  right  of  stopping  goods  in 
transitu,  by  claiming  a  lien  on  them  176,  n.  209,  n  (w>) 

2.  When  liable  to  an  action  of  trover  for  refusing  to  deliver 
the  goods  to  the  consignor  .  .  171,  n. 

3.  Delivery  to,  when  not  a  determination  of  the  transitus. 
See  Delivery,  "No.  9.  196 

CONSIGNEE.     See  Delivery,  Possession,  Stoppage  in  Transitu, 
CONSIGNOR.     See  Delivery,  Possession,  Stoppage  in  Transitu. 
COUNTERMAND.     See  Bankruptcy. 

By  the  consignor,  how  most  easily  effected  .  166.  n. 

D. 

DELIVERY.     See  Jlgent,    1.     Carrier,    3.    Engraver,    Innkeeper,     , 
Packer,  Possession,  Ship,  Stoppage  in  Transitu,  22.  Tran- 
situs, 2.  Wharfinger,  2. 

1.  Of  goods,  if  conditional,  and  the  consignee  is  ready  t» 
perform  the  condition,  the  goods  cannot  be  stopt  in  tran- 
situ ....  .164 

2.  What  mode  of,  sufficient  to  determine  the  transitus  176 

3.  May  be  sufficient  without  the  corporal  touch  of  the 
vendee  .  .  .  .  ib. 

4.  Of  the  key  of  the  vendor's  warehouse  seems  sufficient  176,/ 

5.  Of  part  of  goods  sold  under  an  entire  contract  sufficient 

to  determine  the  transitus  of  the  -whole  180 

6.  At  the  warehouse  of  an  agent  sufficient  where  the  con- 
signee uses  it  as  his  own.     See  Agent,  Packer.  188 

7.  At  a  warehouse  which  the  agent  of  the  consignee  has 

hired,  sufficient  if  the  consignee  come  and  exercise  any 

act  of  ownership  upon  the  goods  there,  though  a  further 

destination  is  in  view  .  .  .  186 

8    Wlial  not  sufficient  to  determine  the  transitus  19i 

9.  To  a  person  who  is  a  mere  vehicle  between  the  vendor 

and    -    'l'  <■,  not  sufficient  .  .  .  191 

11.  Of  lull  of  lading  by  the  consignee  when  it  will  transfer 
the  absolute  property  214.224 


TO  STOPPAGE  IN  TRANSITU. 
E. 

ENGRAVER. 

Delivery  of  plate  to,  by  order  of  the  purchaser  not  a  deter- 
mination  of  the  transitus  .  196 

F. 

FACTOR.     See  Agent  Principal. 

1.  When  so  far  considered  the  vendor  of  goods  to  his  prin- 
cipal as  to  be  entitled  to  stop  them  in  transitu         .  154 

2.  Cannot  stop  goods  in  transitu  where  he  is  merely  a 
surety  for  the  price  ....  159 

3.  May  devest  his  principal  of  his  right  of  stopping  goods 
in  transitu  by  assigning  the  bill  of  lading  by  way  of  sale, 
224 — but  not  by  way  of  pledge  .  .  .  226 

FOREIGN  ATTACHMENT 

On  goods  does  not  devest  the  vendor's  right  to  stop  them  in 

transitu  .....  176.  n. 

FREIGHT. 

Whether  the  consignee's  refusal  to  pay  it,  will  enable  the 
consignor  to  stop  the  goods  in  transitu         .  .  164 

I. 

INDORSEMENT.     See  BUI  of  Lading. 

1.  Of  bill  of  lading  in  blank,  or  to  the  consignee,  or  order, 
sufficient  to  enable  the  consignee  to  transfer  the  property  211 

2.  AVhen  necessary  to  give  the  bill  of  lading  that  effect  ib. 

3.  Not  necessary  in  every  case  .  .  .  ib. 

4.  Does  not  give  it  that  effect  in  every  case  .  225 
INNKEEPER. 

Delivery  to,  when  not  a  determination  of  the  transitus  193 

INVOICE. 

Will  not  it  seems  enable  the  consignee  of  property  in  tran- 
situ to  alien  it  ...  210.  n.  (6) 

L. 

LIEN 

For  work  done  upon  goods  in  the  course  of  trade  will  not 
entitle  the  tradesman  to  stop  them  in  transitu  161 

M. 

MASTER.     See  Cai-rier,  Ship. 

Of  a  vessel,  when  justified  in  delivering  goods  to  the  con- 
signee .....  164 
MONEY. 

When  it  may  be  stopped  in  transitu  15S 


INDEX 

N. 

NOTICE. 

What  sufficient  to  the  assignee  of  a  bill  of  lading-  to  render 
it  not  fairly  assignable  ....  226 

P. 

PACKER 

Delivery  to — when  a  determination  of  the  transitus,  184 — 
when  not  .....  195,6 

POSSESSION.     See  Delivery,  Stoppage  in  Transitu. 

1.  Seems  necessary  on  the  part  of  the  consignee  to  devest 
the  consignor's  right  of  stoppage  in  transitu,  but  not  on 

the  part  of  the  consignor  to  effect  a  stoppage  169.  n.  (b) 

2.  What  mode  of  assumption  of,  by  the  vendee  sufficient  to 
determine  the  transitus  .  .  .  176 

3  Sufficiently  taken  by  the  vendee  to  determine  the  transi- 
tus of  the  goods  by  the  exercise  of  such  acts  of  ownership 
as  the  circumstances  of  the  case  will  permit,  177,8 — By 
marking  the  goods,  178 — By  the  lodgment  of  the  deli- 
very note  with  the  wharfinger,  and  his  transferring  them 
in  his  books,  177.  n  (g) — By  the  vendee's  weighing 
them,  180 — by  the  payment  of  warehouse  rent  177 

4.  When  it  may  be  taken  by  the  vendee  .  .  204 

5.  What  assumption  of  by  the  vendee  not  sufficient  to  de- 
termine the  transitus,  190 — A  demand  not  sufficient,  ib. — 
Payment  of  freight  not  sufficient  .  .  ib. 

6.  When  it  may  be  taken  on  the  part  of  the  vendee,  204 — 
Cannot  it  seems  be  taken  before  the  goods  have  arrived 

at  the  end  of  their  journey  .  .  .  ib . 

PRINCIPAL 

May  stop  goods  in  transitu  consigned  to  his  factor  on  credit  15?" 

K. 

RUSSIA 

Laws  of— 1.  More  favourable  to  the  vendor  of  goods  than 

the  laws  of  England  ....  197 

2.  Allow  goods  to  be  recovered  by  the  vendor  after  a  deli- 
very on  board  a  chartered  ship  ib 
,    Assisted  in  their  operation  by  the  courts  here                   198 

S. 

SHERIFF 

Whether  he  c:tn  defety  the  consignor's  right  to  stop  good*; 
in  tran  litu  by  taking  them  in  execution  175.  n.  (  ) 


TO  STOrPAGE  IN  TRANSITU. 

SHIP 

Delivery  of  goods  on  board  a  chartered  ship  when  sufficient 
to  determine  their  transitus,  188— When  not  sufficient         200 

■ on  board  a  generalship  when  not  sufficient 

to  determine  the  transitus  .  .  .  197 

STATUTES 

26  Geo.  3.  c.  5.  s.  4.  p.  168.   Duties. 

-a c.  59.  p.  213. 

STOPPAGE  IN  TRANSITU.    See  Bill  of  Lading,  Delivery,  Pos- 
session, Transitus. 

1.  Definition  of  the  right  of  .  .  149 

2.  Nature  and  extent  of  ...  149,50 

3.  Origin  of  .  .  .  .  151 

4.  Does  not  proceed  upon  the  ground  of  rescinding  the  con- 
tract ......  150 

5.  A  legal  right        .....  152 

6.  Favoured  by  the  courts         ....         152,66 

7.  By  what  persons  and  under  what  contract  the  right  may 

be  exercised  .....  153 

S.  May  be  exercised  by  any  consignor  who  is  substantially 
the  vendor  of  the  goods.    See  Agent,  Factor,  Principal.         ib 

9.  By  a  person  who  consigns  goods  to  be  sold  on  the  joint 
account  of  himself  and  the  consignee  .  .  158 

10.  Cannot  be  exercised  by  a  party  who  does  not  stand  in 
the  relation  of  vendor,  either  actually  or  substantially. 
See  Factor,  Lien.  ....  159 

11.  May  be  exercised  where  the  vendee  has  actually  paid 
part,  or  made  himself  liable  for  the  whole  of  the  price    150.162 

12  Where  the  consignment  is  conditional.  See  Bills  of 
Lading,  Delivcrv         .....  164 

13.  How  to  be  effected.     See  Countermand.  166 

14.  May  be  effected  by  any  means  short  of  felony  or  abso- 
lute violence  .....  ib 

15.  Maybe  effected  without  taking  possession  by  a  corporal 
touch  .....  167 

16.  By  an  entry  of  the  goods  at  the  custom-house  ib. 

17.  By  a  claim  .....  ib 

18.  Sufficient  by  a  person  who  is  either  a  particular  or  a 
general  agent  of  the  consignor  at  the  time  .  171,2 

19.  Not  sufficient  by  a  person  who  is  not  an  agent  of  the 
consignor  at  the  time,  though  his  act  be  afterwards  ap- 
proved by  the  consignor         .  ,  •  •  172 

20.  When  it  may  be  effected.     S§e  Delivery,  Transitu*  174 


INDEX,  &c. 

21.  Can  only  be  effected  when  the  consignee  refuses  or  ui 
unable  to  fulfil  the  conditions  of  the  contract,  and  where 
the  goods  are  in  transitu  and  not  aliened  by  the  consignee 
to  a  bona  fide  purchaser  .  .  174 

22    Cannot  be  effected  at  all  after  delivery  to  the  vendee        183 

23.  When  devested  by  the  consignee's  having  aliened  the 
goods  ......  209 

24.  When  the  vendor  has  assented  to  a  sale  of  them  by  the 
vendee  to  a  third  person         .......  228 

T. 

TRANSITUS.     See  Delivery,  Ship,  Stoppage  in  Transitu. 

1.  When  to  be  considered  as  continuing  or  determined  175 

2.  Can  only  be  determined  by  an  actual  or  what  is  equiva- 
lent in  law  to  an  actual  delivery  of  the  goods         .  ib 

3.  Ended  where  the  goods  wait  for  further  orders  from  the 
vendee  to  put  them  again  in  motion  .  .  188 

V. 

VENDOR 

May  recover  for  goods  which  he  has  stopt  in  transitu  151 

w. 

WAREHOUSE  RENT.     See  Possession,  No.  3. 

Effect  of  payment  of  by  the  vendor  .  .  .         18^ 

WHARFINGER. 

1.  When  liable  to  an  action  for  refusing  to  re-deliver  the 
goods  to  the  consignor  ....  171 

2.  Delivery  to— when  not  a  determination  of  the  transitus       195 


HIE  END. 


*    7 

LAW  LIBRARY  ° 

UNIVERSITY  OF  CALIFORNIA 
LOS  AMGELES 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  844  917    5 


